Ravi Kumar S/O Late Braj Kishore Mandal vs The State Of Bihar

This petition is filed for quashing order dated 15.3.2013

passed by learned Sessions Judge, Munger whereby regular bail

granted to petitioners Ravi Kumar, Subham Kumar, Kumar Gautam as

well as anticipatory bail granted to Sanjay Kumar and Manorama

Devi was cancelled.

A brief fact of this case is that petitioners are accused

in Kashim Bazar P.S. Case No.136 of 2011 registered under Section

498A of the Indian Penal Code as well as 3/4 of Dowry Prohibition

Act. The accused persons moved regular bail application no.504 of

2011 and anticipatory bail application no.741 of 2011 in the court of

Sessions Judge, Munger by common order dated 23.9.2011 granting

regular bail and anticipatory bail to respective accused applicants. The

bail was granted on the basis of compromise one of the conditions in

the compromise petition was that the husband and wife both would

file a petition under Section 13(b) of the Hindu Marriage Act in the

court of Principal Judge, Family Court for divorce on the basis of

mutual consent and as permanent alimony Rs.4,50,000/- will be paid

by the husband to wife within six months in installments and

accordingly the matrimonial suit will be disposed of, so considering

the compromise petition bail was granted. Later on, a petition was

filed by Renu Kumari complainant/wife seeking cancellation of bail

granted to accused persons on the ground that terms of compromise

are not being fulfilled by accused persons so by impugned order dated

15.3.2013 passed in Cr. Misc. No.2 of 2013 the bail granted to the

petitioners was cancelled considering disobedience of the direction of

the Court.

Learned counsel for the petitioners submits that

Kumar Gautam the husband of the complainant after grant of bail got

terminated from his service as he had gone under custody due to the

criminal case lodged by his wife so he could not sign the petition filed

for divorce under Section 13(b) of the Hindu Marriage Act. Second

contention is that permanent alimony can be fixed by a court of

competent jurisdiction and not by a criminal court. It is also submitted

that the wife filed a Divorce Suit No.157 of 2012 and the Family

Court, Munger by order dated 31.10.2012 and both sides husband and

wife agree to certain terms and conditions and one of the conditions

was that husband will pay Rs.1,00,000/- to his wife towards full and

final settlement regarding permanent alimony in a joint proceeding for

divorce so filed under Section 13(b) of the Hindu Marriage Act by

both sides. The said amount will be paid in two installments and the

wife will withdraw the criminal cases lodged against the husband and

the Divorce Suit No.157 of 2012 was dismissed as withdrawn but

now the wife has turned back and not ready to take Rs.1,00,000/- as

permanent alimony.

Learned Additional Public Prosecutor submits that the

petitioners disobeyed the ground on the basis of which bail was

granted to them so there is no error in the impugned order.

Having considered rival submission and on perusal of

record, I find that permanent alimony and maintenance is passed

under Section 25 of the Hindu Marriage Act, 1955 after taking into

account the status of opposite party in fixing the amount for

maintenance. Without adducing evidence with regard to the economic

status of the concerned party, it is not proper to fix the amount of

permanent alimony or maintenance.

In the present case, a matrimonial suit no.157 of 2012

was filed by Renu Kumari against her husband Kumar Gautam and

the same was dismissed as withdrawn after reconciliation and

agreement between both sides regarding filing of a divorce suit on

mutual consent under Section 13(b) of the Hindu Marriage Act and

during the pendency of the proceeding the husband was to pay

Rs.1,00,000/- to his wife as permanent alimony in two installments. A

criminal court cannot settle the issue of permanent alimony as the

same is beyond its jurisdiction. Permanent alimony to a hindu wife is

granted under Section 25 of the Hindu Marriage Act, 1955 and it is

mandatory for the Court to grant full opportunity to the parties to

substantiate their rival contentions by leading proper evidence. The

Court considers evidence regarding income and conduct of the parties

as well as other circumstances and thereafter the final amount of

permanent alimony is fixed; so fixing an amount of permanent

alimony in criminal proceeding while granting bail is not proper. The

order for release on bail may be cancelled under Section 437(5) or

Section 439(2) of Cr.P.C. generally the grounds for cancellation of

bail are interference or attempt to interference with due course of

administration of justice or evasion or attempt to evade the course of

justice or abuse of the liberty granted to the accused; consideration of

an application for grant of bail stands on a different footing than one

for cancellation of bail.

In the present case, the bail granted to the petitioners

was cancelled on the ground that permanent alimony amount fixed by

way of compromise at the time of hearing of bail was not fulfilled but

it cannot be a ground for cancellation of bail. There is no allegation

against the petitioners that they have misused the liberty or made an

attempt to tamper with the evidence or threatened witnesses,

therefore, the impugned order is not sustainable.

Accordingly, it is set aside and the petitioners shall

continue to remain on bail as earlier granted by the Sessions Court.

This petition stands allowed.