As per the High Court of Patna the right to sue survive/lies with the legal heirs of the deceased In the appeal for enhancement of maintenance in the personal law.
TITLE-Anup Kumar Pandit Vs Sunita Devi & ors
Decided on-18/12/2023
+CR.REV No.1288/2018
CORAM-HON’BLE JUSTICE RAJEEV RANJAN PRASAD
FACT
As per the fact of the case The Revision application has been filed by the petitioner for setting aside the judgement passed by the Principal Judge Family Court Nalanda at Biharsharif in a matrimonial case.As the opposite party in the Family Court claimed that this petitioner was married to applicant no.1 in the year 1990 in the month of Baisakh and gave birth to a child who is Opposite party no.2.It was alleged that the husband of the applicant no.1 was demanding a motorcycle and cash as it was not fulfilled they were thrown out of the matrimonial house.As complaint case was filed in the court learned chief judicial Magistrate were she is troubling in leading her life with the minor daughter and the petitioner was having ab income of Rs 40000 per month but he was neglecting his wife and minor daughter but in written statement the petitioner state that he never married to the opposite party no.1 and there was no question of giving birth to a child and claim that order of acquittal has been passed.The learned pricipal Judge of the Family Court has upon analysis of the evidences and material of oral evidence indicates that the opposite party no.1 was married to the petitioner.as opposite party no.1 is not well educated and does not have any work and only depends upon her father who is even ill.The family court by the impugned Judgement directed the petitioner to pay a maintenance of Rs 5000 to the opposite party no.1 and Rs 2000 to Opposite party no.2 and both are wife and daughter of the petitioner .As assailing the impugned judgement brought to the notice of this court that opposite party no.1 died during pendency of this application on 28/2/2023 and opposite party no.2 is major and married at present.
Law Involved/ legal Provisions
As revision application has been preferred for setting aside the judgement passed by the Learned Principal Judge Family court Nalanda.
Issue Raised
Where the Judgement passed by the learned Family Court Nalanda is maintainable?
Whether after the death of opposite party no.1 her daughter would be entitled to realise the outstanding amount?
The Court analysis and decision
As per the Hon’ble court after hearing both the parties observed and state that as per the evidence and finding of the Family Court That the opposite party no.1 happens to be wife of the petitioner cannot be disturbed.As bare glance over the provision of section 125 crpc provides immediate succor to the wife who is unable to maintain herself or legitimate or illegitimate minor child including a daughter.As the income of the petitioner were he denied his income of Rs 40000 and claim to earn only Rs 10000 per month and were the opposite party no.1 who died and did not get single farthing from the petitioner for life time and the opposite party no.2 has also attained majority and got married without any help from the petitioner.To this court it appears that the petitioner has disclosed income half heartedly and does not disclose his all sources of income. Here the petitioner does not come out clean as he did not disclose his correct income.Therefore the court considered the opinion that the amount of maintenance awarded to the opposite parties by the learned Family court are not unreasonable or excessive that would require any interference of this court.Now to the other issue that this court has no iota of doubt that the arrears of maintenance of the opposite party no.1 would be heritable right if opposite 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.In light of the discussion made hereinabove this revision application would fail. Since the petitioner has not paid single farthing to opposite party no.1 and opposite party no.2 till the date of her marriage and despite there being a Judgement in their favour they could not get any fruit of the judgement,this court is of the considered opinion that the entire arrear amount shall be realised from the petitioner with intrest at the rate of 6% per annum. The revision application is dismissed with cost.
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Written by-Prachee
