Anjarul Sheikh vs The State of Jharkhand and Others

H.C. Mishra

Heard learned counsel for the petitioner and learned counsel for the opposite parties. The petitioner is aggrieved by the judgment dated 24.6.2009 passed by learned Sessions Judge, Pakur, in Criminal Revision No. 6 of 2009 whereby, revision filed by opposite parties Nos. 2 to 4 herein, was allowed by the learned Revisional Court below.

The facts of this case lie in a short compass. The petitioner is husband of opposite party No. 2 Alif Noor Bibi. An application was filed for maintenance by opposite party No. 2 wife, against the petitioner, before the Sub-Divisional Judicial Magistrate, Pakur, in Criminal Misc. Case No. 64 of 2004. The said application was allowed and the petitioner has been directed to give maintenance of Rs. 250/- per month to the opposite parties with effect from 11.6.2004. The petitioner challenged the said order by filing a criminal revision before the Sessions Court, and it appears that during pendency of the said Criminal Revision No. 4 of 2008, there was a compromise between the parties and the parties started living together, on the basis of which, the said revision was dropped by order dated 3.10.2007. Subsequently, it is alleged that again opposite parties were driven out by the petitioner and they filed application for maintenance on 22.10.2008 in the said Criminal Misc. Case No. 64 of 2004 and after hearing both the parties, the order was passed on 21.1.2009. The order dated 21.1.2009 passed in Criminal Misc. Case No. 64 of 2004 has been brought on record as Annexure-4, which shows that the order was passed with consent of both the parties, whereby, the amount of maintenance was directed to be paid to the opposite parties again with effect from January 2009. However, it appears that the said order was again challenged by the opposite parties herein, before the Revisional Court below, which was numbered as Criminal Revision No. 6 of 2009. The said criminal revision was allowed by the learned Sessions Judge, Pakur, by the impugned Judgment dated 24.6.2009, whereby the order dated 21.1.2009 passed by learned Sub-Divisional Judicial Magistrate was set aside, as the Revisional Court was of the view that originally by order dated 3.10.2007 passed in Criminal Misc. Case No. 64 of 2004, the maintenance was directed to be paid with effect from 11,6.2004. In the revision application, which was dropped on the basis of compromise between the parties, the said order dated 3.10.2007 was not set aside and the same was still in force. Learned court below found that in the said circumstances, the subsequent order dated 21.1.2009 was contrary to the previous order dated 3.10.2007 and the same was not sustainable in the eyes of law and accordingly, the said order dated 21.1.2009 was set aside by the Revisional Court below.

Learned counsel for the petitioner has taken a short point in this revision and has submitted that the order dated 21.1.2009 was a consent order, which could not have been challenged in revision by the private opposite parties herein, and accordingly, the impugned Judgment passed by the Court below is absolutely illegal and the same cannot be sustained in the eyes of law.

Learned counsel for the opposite parties submitted that there was no consent for making payment of maintenance with effect from January 2009 en behalf of private opposite parties, rather the consent was only for the amount of Rs. 250/- per month to be paid to opposite parties and as such, there is no illegality and/or irregularity in the impugned order worth interference in the revisional jurisdiction.

After hearing learned counsels for both the parties and upon going through the record, I find that in the order dated 21.1.2009 passed in Cri. Misc. Case 64 of 2004, which has been brought on record as Annexure-4, the order for payment of maintenance with effect from January 2009 had been passed with the consent of both the parties. The language of the Court is very clear. In that view of the matter, the submission of the learned counsel for the private opposite parties that they had consented only for payment of maintenance of Rs. 250/- per month and not for the payment of the said amount with effect from January 2009 cannot be accepted at this stage. If the contention of the learned counsel for the opposite parties is taken to be true, they ought to have brought this fact before the Court below itself by filing an appropriate application that the said consent had wrongly been recorded by the Court below, but admittedly, no such application was filed in the Court below. As such, at this stage, it cannot he accepted that consent was only for payment of maintenance of Rs. 250/- per month and not for the payment of maintenance with effect from 2009. In fact, there is no mention of the amount of maintenance in the order dated 21.1.2009.

In view of the aforementioned discussions, I am of the considered view that since the order dated 21.1.2009 passed in Cr. Misc. Case No. 64 of 2004 was a consent order, the same could not have been challenged in Criminal Revision by the private opposite parties and the impugned order dated 24.6.2009 in Criminal Revision No. 6 of 2009, is absolutely illegal and cannot be sustained in the eyes of law.

Accordingly, the order dated 24.6.2009 passed by learned Sessions Judge, Pakur, in Criminal Revision No. 6 of 2009, is hereby, set aside. Consequently, the order dated 21.1.2009 passed in Cr. Misc. Case No. 64 of 2004 by the learned Sub-Divisional Judicial Magistrate, Pakur, is hereby, restored. This criminal revision is, accordingly, allowed. It appears that an interlocutory application has been died by the petitioner bearing LA. No. 1983 of 2009. In view of order passed today in this revision application, the said interlocutory application also stands disposed of.

Let the Lower Court Records be sent back to the Court concerned forthwith.