IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22928 of 2007 RASHMI KUMARI, Wife of Tapas Kr. Roy, Daughter of Sri Mahesh Chandra Das, R/o of Mohalla – Guru Nanak Pur (Mangal Singh Bhatta) P.S. Zero Mile Sabour, District Bhagalpur. ………. Petitioner Versus 1. THE STATE OF BIHAR 2. Tapas Kr. Roy, Son of Late Shankar Kr. Roy, Data Entry Operator, B.C.C.L. Barsi Division – Dhanbad, R/o Quarter no. – E – 13 C.C.W.O. colony Sarai Kela, P.S. Saraikela, District – Dhanbad. ….. Opp. Parties ----------- For the petitioner : Mr. Vikram Singh, Advocate For the State : Dr. Mayanand Jha, A.P.P. For O.P. No. 2 : Mr. Randhir Kumar No. 1, Advocate O R D E R 3 15.10.2008 The applicant of Misc. Case No. 3 of 2006 through this application has prayed for quashing of order dated 17.2.2007 passed therein by the learned Principal Judge, Family Court, Bhagalpur, whereby he has dismissed the maintenance case filed by her under section 125 Cr.P.C. solely on the ground of her non appearance in Court. It has been submitted by the learned counsel for the petitioner that although she had been present in Court on all dates fixed in the case she became a victim of the ailment of Hepatitis B as a reason whereof she could not attend Court on 17.2.2007 but a petition was filed on her behalf to bring to the notice of the Court her ailment and that in pursuance of earlier order of the Court to examine witnesses through affidavit, her witnesses had filed their respective affidavits which were available on record. However, the learned Court while rejecting the petition aforesaid by the impugned - 2 - order has also dismissed the maintenance case. It appears that five reasons have been assigned by the Court for rejecting the prayer, namely, firstly that the applicant Rashmi Kumari had made attempt to misguide the Court by filing adjournment application, secondly the adjournment application had been rejected because no lawyer was permitted to represent the applicant and that the signature of the lawyer who had signed on the adjournment petition was not identifiable by his initial, thirdly no witness had turned up as claimed in the adjournment petition and fourthly that the statement on evidence of witnesses had been filed while the case was proceeding ex parte and on recall of ex parte order the statement had become irrelevant under section 161 Cr.P.C. Fifthly, the prescription of Dr. Bharat Bhushan was not convincing since no pathological tests or investigation had been advised therein. I fail to understand the reasons of the learned court below. Although ordinarily lawyers are not permitted to appear before the Family Court in favour of the parties, the Court can on justifiable occasions take the help of lawyers. Similarly, when the statement of the witnesses on affidavit had been filed in the court below the maintenance case could not have dismissed / disposed of without dealing with the evidence that had come forth on record. In that view of the matter the court below has acted with material irregularity in dismissing the maintenance case. While setting aside the impugned order dated 17.2.2007 passed in Misc. Case No. 3 of 2006 I hereby direct the learned Principal Judge, Family - 3 - Court, Bhagalpur, to reconsider the petition dated 17.2.2007 and pass orders in accordance with law. Spd/- (Abhijit Sinha, J.)