IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13719 of 2008 MD. DAUD Versus STATE OF BIHAR & ANR With Cr. Misc. No. 38847 of 2006 Md Daud Vrs. State of Bihar & ors. ------------- 3 2/7/2008 Heard counsel for the petitioner. With reference to the order dated 28.3.2008 in Cr. Misc. No. 13719 of 2008 counsel for the petitioner submits that necessary amount to the tune of Rs. 24060/- as ordered by the court below in the order dated 9.1.2006 has been paid by the petitioner to the opposite party no. 2 for the period up to March, 2008. Thus for the reasons mentioned in the application Cr. Misc. No. 13719 of 2008 is allowed and Cr. Misc. No. 38847 of 2006 is restored to its original file. Counsel for the petitioner next contended that as earlier application Cr. Misc. No. 38847 of 2006 was dismissed for default he should be heard on merit for the purpose of assailing the order dated 9.1.2006 in T.R. No.132 of 2005 which was subject matter of Cr. Misc. No. 38847 of 2006. This Court has accordingly heard the counsel for the petitioner on merit. Counsel for the petitioner on merits submits that the impugned order dated 9.1.2006 allowing maintenance of Rs. 900/- per month for the opposite party no.2, the wife and the minor child is both illegal and excessive in amount. He submits that the marriage in question was void, in as much as, the opposite party no.2, his wife was already carrying a pregnancy of eight weeks before 2 marriage as found by the radiologist on 10.4.2008. He further submits that the matter regarding pregnancy of the opposite party before marriage was not considered properly by the court below. In the opinion of this Court such statement on the part of the petitioner is devoid of any merit, in as much as, in paragraph 21 of the impugned order the court below has considered this aspect of the matter very carefully and therefore the statement that such plea of the petitioner with regard to marriage being void on account that before marriage his wife was already pregnant is absolutely incorrect. That apart the reasoning given by the court below that such plea of the petitioner could not have been accepted on account of not furnishing any scientific proof to this effect by him with regard to premature pregnancy of his wife which she was allegedly carrying before marriage cannot be faulted. Obviously, the court below has not made any error in this regard because if the petitioner had knowledge of pregnancy of his wife from before, onus is upon the petitioner to prove this fact. He has however miserably failed to prove the same and as such the petitioner cannot expect this Court to go into the merits in the limited jurisdiction under section 482 of the Code of Criminal Procedure. Counsel for the petitioner thereafter assails on the quantum of maintenance. In the opinion of this Court maintenance of Rs. 900/- per 3 month for his wife and a minor child is not excessive. Thus there is no merit in this application and the same is accordingly dismissed. The Court below is accordingly directed to ensure that its order directing payment of Rs. 900/- per month by the petitioner to the opposite party is punctually obeyed, and accordingly the court below would be at liberty to take recourse to coercive measures against the petitioner for securing payment of both arrears and current amount of maintenance as per the impugned order dated 9.1.2006. This Court in fact has taken into consideration an application sent by the opposite party dated 12.6.2008 kept at Flag- A wherein it has been stated that a sum of Rs. 24060/- was paid to her for the first time in compliance of the order dated 9.1.2006. In that view of the matter, the court below will also examine as to whether the order dated 9.1.2006 has been complied in its true terms and spirit and in the event it is found that the petitioner has not paid any amount as directed in the aforesaid order, the court below will take necessary steps against the petitioner in accordance with law. With the aforesaid observation and direction this application Cr. Misc. No. 38847 of 2006 is dismissed. ( Mihir Kumar Jha, J.) Abhay Kumar