CRIMINAL MISCELLANEOUS No.25270 OF 2001 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- INDRADEO CHAUDHARY S/O BISHUN CHAUDHARY, RESIDENT OF MOHALLA MALIK SARAI, P.S. ISLAMPUR, DISTRICT NALANDA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. SABITA DEVI W/O INDRADEO CHAUDHARY D/O CHANDRIKA CHAOUDHARY, RESIDENT MOHALLA MALIK SARAI, P.O. ISLAMPUR, P.S. ISLAMPUR, DISTRICT NALANDA AT PRESENT RESIDING AT VILLAGE SATBARHI DHARAMPUR, P.S. CHANDI, DISTRICT NALANDA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Nand Kishore Prasad Sinha, Adv. For O.P. No.2 : Mr. Manoj Kumar, Adv. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The petitioner, who is husband of opposite party no.2, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 31.7.2001 passed by the Ist Additional Sessions Judge, Hilsa in Cr. Revision No.27 of 1999, whereby he had allowed the revision preferred by opposite party no.2 filed against the order dated 3.6.1999 passed by the Judicial Magistrate, Ist Class, Hilsa in Case No.32M of 1997. The learned Ist Additional Sessions Judge, Hilsa, by its order dated 31.7.2001, has directed the petitioner to make 2 payment of monthly maintenance allowance of Rs.1,000/- in favour of opposite party no.2 and Rs.400/- for her daughter. The learned Judicial Magistrate, by its order dated 3.6.1999, had rejected the petition filed by opposite party no.2 under Section 125 of the Code of Criminal Procedure. 2. The opposite party no.2, wife of petitioner, had initially filed a petition before the Additional Chief Judicial Magistrate, Hilsa under Section 125 of the Code of Criminal Procedure vide Maintenance Case No.32M of 1997 stating therein that she was married with the petitioner according to Hindu customs and thereafter, she started to live with her husband as wife in her in-laws house and out of said wedlock one daughter, namely, Khushbu Kumari born. However, after the birth of the daughter, she was not properly treated in her in-laws house and finally she was ousted with her daughter and she came to her parents house. Criminal case was also filed against husband and others. Since the parents of the opposite party no.2 were not capable of maintaining the opposite party no.2, the opposite party no.2 filed a petition for maintenance under Section 3 125 of the Code of Criminal Procedure disclosing therein that the petitioner’s annual income was about Rs.15,000/- from toddy business and also he was getting salary of Rs.3,000/- per month from his private job at Delhi. Accordingly, she claimed for maintenance at the rate of Rs.1,000/- per month for herself and Rs.600/- per month for her daughter. In the said proceeding, after issuance of notice, the petitioner appeared and he took the stand that the opposite party no.2 had willfully started to live with her parent and she was assisting her parent in their toddy business. It was also stand of the petitioner that the opposite party no.2 was capable of maintaining herself and her daughter. However, the learned Judicial Magistrate, Ist Class, Hilsa rejected the maintenance case i.e. Maintenance Case No.32M of 1997. Against the rejection of the case i.e. Maintenance Case No.32M of 1997, the opposite party no.2 preferred a revision vide Criminal Revision No.27 of 1999. 3. After hearing the parties, the learned Ist Additional Sessions Judge, Hilsa allowed the revision petition by its order dated 31.7.2001 and directed the petitioner to pay 4 Rs.1,000/- per month allowance for maintenance of opposite party no.2 and Rs.400/- per month for her daughter, namely, Khushbu Kumari. The petitioner was also directed to pay the arrears in course of one year in different instalments and the petitioner was directed to make payment of current maintenance also. 4. Aggrieved with the order of revisional court, the petitioner approached this Court by filing the present petition, which was admitted on 20.5.2002. Since there were no stay, the opposite party no.2, in the meanwhile, filed a petition in the court of Principal Judge, Family Court, Nalanda at Biharsharif vide Misc. Case No.24 of 2009 arising out of Maintenance Case No.32M of 1997 for a direction to the petitioner for making payment of maintenance allowance. Thereafter, the petitioner filed an Interlocutory Application vide I.A. No.2525 of 2009, which was heard on 23.6.2010 by this Court and notice was directed to be issued to opposite partyno.2. In the meanwhile, it was directed that “ Until further orders, as prayed in the I.A. concerned, further proceeding in Misc. Case No.24 of 2009 pending in the court of Principal Judge, Family Court, Nalanda,at Biharsharif, 5 shall remain stayed.” 5. Shri Nand Kishore Prasad Sinha, learned counsel appearing on behalf of the petitioner, has argued that it was not a case in which the petitioner, being husband, had intentionally neglected either the opposite party no.2(his wife) or his daughter. It was submitted that the opposite party no.2 had voluntarily left the house of the petitioner with a view to render assistance to her parent in doing toddy business and as such she was not entitled to get any maintenance and, accordingly, the learned Judicial Magistrate, by its order dated 3.6.1999, had rightly rejected the Maintenance Case No.32M of 1997. It was argued that in the proceeding in Maintenance Case No.32M of 1997, the opposite party no.2 was also examined and cross-examined and thereafter, the learned Magistrate concluded that the opposite party no.2 herself was not ready to live with the petitioner and as such she was not entitled to get any maintenance. Shri Sinha further argued that the petitioner was doing a private job in Delhi and he was getting Rs.1,600/- per month as salary and as such the amount directed to be paid as maintenance was 6 excessive. He has disputed the claim of opposite party no.2 that the petitioner was having annual earning of Rs.15,000/- from toddy business. Shri Sinha has strongly argued that in any event, monthly maintenance allowance fixed by the court below is excessive and the order is liable to be interfered with. Shri Sinha has further submitted that the opposite party no.2 has already solemnized another marriage in the year 2002 with one Sunil Choudhary and as such she is not entitled to get any maintenance allowance from the petitioner. 6. Shri Manoj Kumar, learned counsel appearing on behalf of opposite party no.2, has strongly opposed the prayer of the petitioner. On the point of re-marriage by referring to averments made in the counter affidavit and its enclosure, it was submitted by learned counsel for opposite party no.2 that the opposite party no.2 never solemnized second marriage and to this effect certificates were also granted by Mukhiya and Ward Member of the Panchayat. He has strongly refuted the contention of the petitioner regarding second solemnization of marriage. It was submitted on behalf of opposite party no.2 that it is not in dispute that 7 opposite party no.2 is the wife of the petitioner. It was further submitted that since the opposite party no.2 was ousted from her in- laws house, after being tortured by her husband and other family members of her husband, she had also filed a complaint case against her husband and family members of her husband. It was argued that even the petitioner has not disputed at any stage that opposite party no.2 is not his wife nor he has disputed regarding the status of the daughter. It is also un-disputed that the opposite party no.2 is living separately in destitute though with her parent and she is not in a position to maintain. It was submitted that the learned revisional court has rightly and legally passed an order directing the petitioner to give monthly maintenance allowance to the opposite party no.2 and her daughter, which requires no interference. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record particularly the impugned order. After going through the impugned order and materials on record, it is evident that opposite party no.2 is legally married wife of petitioner. It also appears that the opposite 8 party no.2 was ousted, after being tortured and thereafter, a criminal complaint case was also filed by her against her husband and family members of her husband. The petitioner has also not disputed that daughter, who is living with opposite partyno.2, is not daughter of the petitioner. Once the opposite party no.2, with her daughter, was ousted by the petitioner and she is living with her parents and earning nothing, there is no reason for not paying maintenance allowance by the petitioner to opposite party no.2 and her daughter. The learned revisional court, by a detailed and reasoned order, has directed the petitioner to pay monthly allowance, which requires no interference. So far as the argument, which has been advanced by Shri Nand Kishore Prasad Sinha, learned counsel for the petitioner that subsequently, the opposite party no.2 solemnized the 2nd marriage is concerned, those facts can well be examined by the court below in view of provisions under Section 125 of the Code of Criminal Procedure itself. If he is in a position to satisfy the court below that the opposite party no.2 has solemnized second marriage, then he would be entitled to get 9 relief, but that power is to be exercised by the court below. Those facts cannot be examined by this Court, while hearing a petition under Section 482 of the Code of Criminal Procedure. 8. In view of the facts and circumstances of the present case, the court is of the opinion that the order impugned requires no interference and as such the present petition stands rejected. 9. Lower Court Record may be remitted back to the court below. PATNA HIGH COURT Dated 11th February,2011 N.A.F.R./N.H. ( Rakesh Kumar,J.)