Patna High Court – Orders
Sanjay Paswan vs The State Of Bihar on 15 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL REVISION No.652 of 2023 Arising Out of PS. Case No.- Year-0 Thana- District- Sitamarhi ====================================================== Sanjay Paswan, Son Of Sri Kailash Paswan Resident Of Chandrahatti, P.S. - Dumra, District - Sitamarhi ... ... Petitioner/s Versus 1. The State of Bihar 2. Rajni Kumari Wife Of Sanjay Paswan Resident Of Chandrahatti, P.S. - Dumra, District - Sitamarhi. Present Address - Daughter Of Narayan Paswan, Resident Of Ward No.21, Mela Road Bhavdeopur (BEHIND Dr. Anju Singh) P.S. - Sitamarhi, District - Sitamarhi 3. Arab Kumar (minor) Son Of Sanjay Paswan Thorough His Mother Rajni Kumari ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Pawan Kumar, Advocate Mr.Dhaneshwar Vashist, Advocate Ms.Diksha, Advocate Mr.Raghav Vatsa, Advocate For the Respondent/s : Mr.Narendra Kumar Singh, APP For the O.P Nos. 2 and 3 : Mr.Raghvendra Kumar, Advocate Ms.Simran Thakur, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI ORAL ORDER 5 15-07-2025
1. The petitioner is the husband of Opposite Party No.
1. Their marriage was solemnized on 14 th of December, 2015.
The Opposite Party No. 1 filed an application under Section 125
of the Code of Criminal Procedure, praying for maintenance
allowance, alleging, inter alia, that after solemnization of her
marriage with the petitioner, it was consummated and in the
wedlock, she gave birth to a male child. It is alleged that after
marriage, the petitioner and his relatives demanded Rs. 10
Lakhs as dowry, which she denied. It is further alleged that at
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the time of marriage father of the Opposite Party had given Rs.
15 lakshs in cash and Rs. 3 lakhs in the account of the brother of
the petitioner on 19.05.2015. Again, on 23.05.2015, Rs. 50,000/-
and Rs. 49,500/- in the account as well as Rs. 5,00,000/- was
given to the father of the petitioner. It is also alleged that in the
night of 09.02.2019, they have attempted to immolate her but
fortunately her brother Rahul and Lal Babu Paswan reached her
matrimonial house on motrorcycle and hearing her screaming
voice all the accused persons had fled away and thereafter she
was admitted in the clinic for treatment. It is further stated that
the petitioner has been pursuing his MD course after MBBS in
IGIMS, Patna from where he is getting Rs. 70,000/- in terms of
stipend and in addition to this, he is earning Rs. 30,000/-. It is
further stated by the Opposite Party No. 2 that as she has no
source of income and she is a burden on her parents, she is
entitled for her expenditure from her husband/petitioner.
Therefore, she demanded a sum of Rs. 30,000/- as maintenance
per month and Rs. 15,000/- as interim maintenance till the
disposal of the application under Section 125 of the Cr.P.C.
2. By an order, dated 2nd of February, 2023, the
learned Principal Judge, Family Court, Sitamarhi passed an
order of ad interim maintenance to be paid by the petitioner in
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favour of the Opposite Party No. 2 at the rate of Rs. 20,000/- per
month within 10th day of each succeeding month and to pay the
due interim maintenance from March, 2022 to February, 2023
for 12 months @ 20,000/-, i.e., Rs. 2,40,000/- within a period of
three months from the date of the order, which would be
deposited in the bank account of the applicant, till the final
disposal of the application under Section 125 of the Cr.P.C.
3. The said order is under challenge in the instant
revision.
4. The learned Advocate appearing on behalf of
Opposite Party, at the outset, submits that Criminal Revision is
not maintainable against an order of ad interim maintenance.
5. In support of his contention, he refers to an
unreported decision of this Court of a learned Single Judge,
passed in Criminal Revision No. 623 of 2011 on 29 th of
November, 2013.
6. The learned Advocate appearing on behalf of the
Opposite Party also refers to an unreported decision in Criminal
Miscellaneous No. 22165 of 2016, decided on 16th of
September, 2016, passed by the Division Bench of this Court,
holding as hereunder: –
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are of the view that the only remedy, available
to the petitioner, is to make an application
under Article 227 of the Constitution of India
before this Court, if he is so aggrieved by the
order of the interim maintenance, dated 10th of
February, 2016, passed by the Principal
Judge, Family Court, Munger.”
7. Therefore, the Division Bench held that the
application under Section 482 of the Code of Criminal
Procedure, challenging an order of interim maintenance is not
maintainable before the High Court.
8. In view of the above question regarding
maintainability, raised before this Court, it is necessary to
examine the above-mentioned unreported decisions in the light
of the subsequent judgments of the Hon’ble Supreme Court and
other High Courts to come to a finding as to whether the law
that no revision is maintainable against an order of ad interim
maintenance is still hold good in view of the judgment passed in
Criminal Revision No. 623 of 2011 (supra).
9. Second and third proviso of Section 125 was
inserted by Criminal Procedure Amendment Act 50 of 2001
w.e.f. 24th September, 2001. The relevant portion runs thus: –
“Provided further that the
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Magistrate may, during the pendency of the
proceeding regarding monthly allowance for
the maintenance under this sub-section, order
such person to make a monthly allowance for
the interim maintenance of his wife or such
child, father or mother, and the expenses of
such proceeding which the Magistrate
considers reasonable, and to pay the same to
such person as the Magistrate may from time
to time direct.
Provided also that an application
for the monthly allowance for the interim
maintenance and expenses of proceeding
under the second proviso shall, as far as
possible, be disposed of within sixty days from
the date of the service of notice of the
application to such person.”
10. Thus, the Statute used the term interim
maintenance which a wife; legitimate or illegitimate minor
child; legitimate or illegitimate child who has attained majority,
where such child is, by reason of any physical or mental
abnormality or injury, unable to maintain itself or father or
mother, unable to maintain himself or herself, is entitled to get
in view of the amended provision of the Cr.P.C. w.e.f. from 24h
of September, 2001.
11. A Co-ordinate Bench of this Court in Criminal
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Revision No. 623 of 2011 (supra) held that the order, granting
interim maintenance is in the nature of interlocutory order and
on account thereof, revision in terms of Section 19(4) of the
Family Courts Act is found barred.
12. The Co-ordinate Bench relied on the decisions of
the Hon’ble Supreme Court in Amar Nath’s case as well as
Madhu Limaye’s case, while identifying the nature of order
under two categories:
(a) final order
(b) interlocutory order wherein, it has been held that
any order passed at any stage of the proceeding in case decides
the issue in question in its finality, then in that event, the order
impugned cannot be termed as an interlocutory order.
13. The same question with regard to revisional
jurisdiction of the High Court came up for consideration before
a three Judges Bench decision in Girish Kumar Suneja v.
Central Bureau of Investigation, reported in (2017) 14 SCC
809. In paragraph 17 of the said judgment, the Hon’ble Supreme
Court held as under:-
“17 The concept of an intermediate
order first found mention in Amar Nath v. State
of Haryana [(1977) 4 SCC 137] in which case
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(2) of the Cr.P.C. came up for consideration.
This decision is important for two reasons.
Firstly it gives the historical reason for the
enactment of Section 397(2) of the Cr.P.C. and
secondly considering that historical
background, it gives a justification for a
restrictive meaning to Section 482 of the
Cr.P.C.”
14. It is needless to say that Sub-section (2) of Section
397 of the Cr.P.C. specifically bars that the powers of revision
conferred by Section (1) of Section 397 shall not be exercised in
relation to interlocutory order passed in any appeal, enquiry,
trial or other proceedings.
15. The concept of intermediate order was further
elucidated in Madhu Limaye vs. State of Maharashtra [1977 4
SCC 551], by contra-distinguishing a final order and an
interlocutory order. This decision lays down a principle that an
intermediate order is one, which is interlocutory in nature, but
when reversed, it has the effect of terminating the proceeding
and thereby resulting in a final order. To such intermediate
orders immediately come to mind an order taking cognizance of
an offence and summoning an accused and an order framing
charges. Prima facie, these orders are interlocutory in nature,
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but when an order of taking cognizance and summoning an
accused is reversed, it has the effect of terminating the
proceeding against that person resulting in a final order in his or
her favour. Similarly, an order of framing charges, if reversed,
has the effect of discharging an accused and resulting in a final
order in his or her favour. Therefore, an intermediate order is
one which if passed in a certain way, the proceeding would
terminate, but if passed in another way, the proceeding would
continue.
16. In Girish Kumar Suneja (supra), the Hon’ble
Supreme Court referred its earlier decision in the case of K. K.
Patel v. State of Gujarat, reported in (2000) 6 SCC 195,
wherein a revision petition was filed challenging the taking of
cognizance and issuance of a process. It was said: –
“It is now well-nigh settled that in
deciding whether an order challenged is
interlocutory or not as for Section 397(2) of
the Code, the sole test is not whether such
order was passed during the interim stage
(vide Amar Nath v. State of Haryana, Madhu
Limaye v. State of Maharashtra, V.C. Shukla v.
State through CBI [1980 Supp SCC 92] and
Rajendra Kumar Sitaram Pande v. Uttam
[(1999) 3 SCC 134]). The feasible test is
whether by upholding the objections raised by
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proceedings, if so any order passed on such
objections would not be merely interlocutory
in nature as envisaged in Section 397(2) of the
Code. In the present case, if the objection
raised by the appellants were upheld by the
Court the entire prosecution proceedings
would have been terminated. Hence, as per
the said standard, the order was revisable.”
17. At this juncture, a question naturally arises as to
whether an order of interim maintenance is an interlocutory
order or an intermediate order.
18. In Criminal Misc. Case No. 22165 of 2016 (Md.
Akil Ahmad v. State of Bihar & Anr.), a Division Bench of this
Court passed a judgement on 16th of September, 2016. Relying
on a Larger Bench decision reported in 1992 PLJR 693 which
stated in paragraph 16 as hereunder:-
“16. Whether the High Court can exercise
such power of superintendence only when no appeal or
revision has been provided under the Code against
orders passed by such criminal courts or even in cases
where the persons concerned have availed the remedy
provided under the Code for setting aside such orders?
It may be urged that in the aforesaid two Full Bench
decisions of this Court and in the case of Chandra
Shekhar Singh & Another (supra) before the Supreme
Court, no internal remedy by way of appeal or revision
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exercise of appellate or revisional power of this Court
under the old Code is concerned, in my view whether a
bar has been placed or not on exercise of the appellate
or revisional power under the Code itself is not of much
consequence so far as the power of this Court under
Article 227 of the Constitution is concerned. But there
may be three situations under which the power under
Article 227 may be invoked. Firstly, where no appeal or
revision has been provided against the order in question,
secondly, where the person aggrieved has already filed a
revision application before Sessions Judge and his
revision application to this Court against the order
passed by the Sessions Judge is barred under Section
397(3) of the Code. The third eventuality may be where
although a revision application or an application under
Section 482 of the Code is maintainable before this
Court, still an application under Article 227 is filed. In
my view, there is no question exercise of power under
Article 227 in the third category of cases, the remedy
being available to petitioner under the provisions of the
Code itself. So far the cases falling in the first category
i.e., where no appeal or revision has been provided as
has been said by the Supreme Court, it will require an
exceptional case before power under Article 227 is to be
exercised. In respect of the cases coming under second
category i.e., the revision application have already been
dismissed by the Sessions Judge, and bar under Section
397(3) is applicable for interference under Article 227,
very exceptional circumstances must exist in view of the
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Singh(Supra)”
19. Thus, the Division Bench held that an order of
interim maintenance can only be challenged under Article 227
of the Constitution of India.
20. The decision of Md. Akil Ahmad (supra) was
considered by the Larger Bench in Dr. Dilip Kumar @ Dr. Dilip
Kumar Sharma vs. The State of Bihar & Anr (Cr. Misc No. 6740
of 2016) and the Larger Bench vide order dated 22nd of
November, 2024, in paragraph 45 and 46 observed as follows:-
“45. We are thus of the considered view that
an order of interim maintenance is an order finally
deciding the issue of the moment, which is not, stricto
sensu, an interlocutory order but an intermediary order
against which no bar of preferring revision against
such order would apply.”
“46. The questions are, thus, answered as
follows:-
(i) An order of interim maintenance under the
second proviso of Section 125 Code of Criminal
Procedure, 1973 is not an “interlocutory order”, but
an “intermediate/quasi final order”; and
(ii) The remedy of criminal revision would be
available qua both the interim and the final order
under Sections 125 to 128 of the Code of Criminal
Procedure, 1973 under sub-section (4) of Section 19 of
the Family Courts Act, 1984.
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21. The issue as to whether interim order of
maintenance is revisable or not is, thus, decided in the
affirmative.
22. At this stage, the instant revision is taken up for
hearing on merit.
23. It is submitted by the learned Advocate for the
petitioner / husband that the Trial Court by passing the
impugned / order 2nd of February, 2023, directed the petitioner to
pay entire arrears interim maintenance from the months of
March, 2022 to February, 2023 at the rate of Rs. 20,000/- per
month i.e., Rs. 2 lakhs 40 thousand within a period of three
months from the date of the order. The petitioner was also
directed to pay current interim maintenance at the rate of Rs.
20,000/- per month.
24. The amount of maintenance was considered on the
ground that the petitioner is a Medical Officer in Bihar Health
Services. Beside he has some income from his private practice.
Thus, the Trial Court held the petitioner’s income to the tune of
Rs. 1 Lakh 20 Thousand per month.
25. In the instant revision, the petitioner has denied
such finding of the Trial Court, stating, inter alia, that his
monthly salary is Rs. 65,251/- and he took substantial amount of
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loan during his medical examination. Now he is repaying the
said educational loan at the rate of Rs. 36,438 per month. Thus,
the petitioner has only remained a sum of Rs. 28,000/- for his
personal expanses as well as for the maintenance of his old
parents.
26. It is further submitted by the learned Advocate for
the petitioner that the opposite party / wife used to discharge a
duty as Jevika and earned Rs. 15,000/- per month. Subsequently,
she got the job of teacher in the Government School and earns
Rs. 25,000/- per month. Thus, the opposite party has sufficient
means of income and no amount is required at present for
interim maintenance of the petitioner.
27. Learned Advocate for the opposite party, on the
other hand, submits that indisputably marriage of the parties was
solemnized in the year 2015. In the said wedlock, the parties
were blessed with a son, who is now reading in Class II. The
petitioner being the father has moral and legal duty even to
maintain his son but he has not discharged any such duty. As on
this date, an amount of Rs. 6 Lakh and 60 thousand is due
towards interim maintenance to be paid by the petitioner in
favour of the opposite party no. 2. Only because the opposite
party no. 2 get an employment as a Government Teacher, her
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claim for interim maintenance cannot be denied.
28. Having heard the learned counsel for the parties, I
find that the order of interim maintenance was disposed of by
the Trial Court without obtaining any affidavit of assets and
liabilities as directed by the Hon’ble Supreme in Rajnish v.
Neha. If the affidavit of assets and liabilities were filed, then the
contesting parties would not have disputed their assets and
liabilities. It is true that the petitioner had taken a series of
adjournment in the Trial Court to stall the maintenance
proceeding. However, this Court is not in a position to assess
any material in the impugned order whereby and whereunder
the Trial Court fixed Rs. 20,000/- per month as interim
maintenance without considering affidavits of assets and
liabilities and the income of the opposite party.
29. In view of such circumstances, the impugned
order is set aside.
30. The parties are directed to file affidavit of assets
and liabilities within three weeks from the date of
communication of this order to the Family Court. No further
time shall be granted on any reason whatsoever.
31. On the basis of the affidavit of assets and
liabilities, the learned Trial Judge shall decide the quantum of
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interim maintenance payable to the petitioner during the
pendency of the application under Section 125 of the Cr.P.C. in
accordance with law.
32. However, the petitioner shall go on paying a sum
of Rs. 10,000/- per moth for the maintenance of his minor son
till the disposal of the maintenance proceeding.
33. With the above order, the instant revision is
disposed of.
(Bibek Chaudhuri, J)
uttam/-
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