IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.577 of 2007 CHANDAN KUMAR SRIVASTAWA Versus STATE OF BIHAR & ANR ----------- 5 30.3.2009 No one appears for the Opposite party no.2. Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 19.1.2007 whereby the Principal Judge, Family Court, Sasaram, Rohtas directed him to pay a sum of Rs.1000/- per month to the Opposite party no.2 from the date of the order. It appears that the marriage between the parties was solemnized on 3.5.2002. It is alleged that due to non-fulfillment of dowry the Opposite party was subjected to torture at the hands of the accused persons. It is alleged that the Opposite party came to her paternal house in April 2003. In July 2003, she filed the instant case under section 125 Cr.P.C. It is stated that her husband, who was Opposite party in the Maintenance Case, earns Rs.20,000/- per month. It was further stated that he has 50 Bighas of agricultural lands and as such prayed for a sum of Rs.2500/- as maintenance allowance. Opposite party appeared and filed his show cause in which he had denied the demand of dowry as well as cruelty perpetuated on the complainant. He stated that the complainant got illicit relation with one Rajesh Kumar Gupta and she is living in adultery. 2 The Complainant examined all together four witnesses in support of her contention. A.W.1 and 3 are her brothers and A.W.4 is Birendra Prasad Sinha is the father of the complainant. The petitioner who was Opposite party in the Maintenance case examined three witnesses. The petitioner has challenged the impugned order on the ground that there has been compromise between the parties and divorce has been resolved. It has further been submitted that on account of compromise the criminal case has also ended in acquittal. Learned counsel for the petitioner submits that in view of section 125(4) Cr.P.C., the Opposite party is not entitled to any maintenance. He submits that as per section 125(4) no wife shall be entitled to receive an interim maintenance from husband, if she is living in adultery or if without any sufficient reason she refuses to live with her husband or they are living separately by mutual consent. It appears from the materials on record that the marriage has been dissolved. Consequently the Opposite party is living separately. It is not the case where aggrieved person were living separately by a mutual consent prior to the dissolution of marriage. As such the aforesaid provision will be of no help to the petitioner rather section 127(3)(c) will apply in the instant case. As per section 127(3)(c) if a woman voluntarily surrendered her rights to maintenance under this provision while obtaining a divorce she would not be entitled to a maintenance. 3 KHAN There is no material on record to show that the Opposite party has surrendered her right and got maintenance at the time of divorce. This court finds that the Opposite party is entitled to maintenance. Further more no concrete material is on the record to show that the Opposite party is living in adultery. Neither there is any finding of the Principal Judge in this regard. However, it appears from the evidence of the Opposite party that the petitioner is earning about Rs.2,000 to 3,000/- from his shop. In this view of the matter, the quantum of maintenance is reduced from Rs.1,000/- to Rs.850/- per month, as directed by the Principal Judge, Family Court, Sasaram. However it will be effective from the same date as ordered by the learned Principal Judge. With the aforesaid modification in the quantum of maintenance, this application is disposed of. The petitioner must pay the arrear and current maintenance without much delay. (S.P.Singh,J)