IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1444 of 2008 MAHTAB ALAM Versus ASMA KHATOON ----------- 2 24.09.2008 Heard counsel for the husband- petitioner. An order awarding Rs. 1500/- per month by way of maintenance under section 125 of the Code of Criminal Procedure has been assailed by the petitioner primarily on two grounds, namely, that the wife- opposite party who was married to the petitioner on 18.10.2002 had already been divorced on 25.8.2004 and further that the wife-opposite party was living in adultery. The court below as with regard to the plea of divorce as claimed by the petitioner had rejected the same by recording the following findings:- “On behalf of the o.p. a photocopy of he Darul Kaza Ada re, Saria Bihar of the year 2004 of Susltan Gunj, Patna has been filed. Similar is the case that these documents have not been properly brought on the record. Only the photocopy of the document have been filed and accordingly no reliance can be placed on these documents. Even for the sake of the discussions, it be presumed that there was a divorce, eve, then it can be safely be said that it all happened out of fear and anguish of the case. The applicant 2 has already filed a case u/s 498A I.P.C against the o.p. and his family members prior to the year 2004, i.e, in the year 2002.” Counsel for the petitioner when asked to produce any such document of divorce, was not in a position to place a copy thereof and his submission was that the Court below ought to have not become too technical in accepting the photocopy of the document as a proof of divorce of the petitioner. This Court is of the opinion that the proceeding under section 125 of the Code of Criminal Procedure has to be conducted strictly as a judicial proceeding and when the petitioner had examined his witnesses, it was also incumbent for him to get the document of divorce proved. The petitioner did neither produce the original copy of the proclamation of divorce of the religious body nor had even examined the author of Darul Kaza to support his version of divorce. In that view of the matter, it would be difficult for this Court to give credence to the story of divorce and as 3 such the approach of the Court below in rejecting the plea of divorce does not suffer from any infirmity. Second and the last point urged by counsel for the petitioner as with regard to the fact that the opposite party is living in adultery, was also not sought to be established with the help of any evidence adduced by the petitioner in the Court below. The Court below has again considered this aspect in the impugned judgment by its findings to the following effect :- “The plea of bad character of any woman is always irrelevant in the eye of law and if one wants to prove it, he should come with clean hands and must prove by impeaching evidence and in this case it has not been done so.” Counsel for the petitioner, in fact, was called upon to place on record any such evidence which could have demonstrated that the opposite party was living in adultery. He fairly conceded that except oral evidence of husband- petitioner before the Court there was no evidence to prove this aspect. This Court, therefore, would find that even a plea of the opposite party 4 living in adultery was untenable in the eye of law and the Court below has not committed any error in rejecting the same. Let it be noted that counsel for the petitioner did not assail any other finding of the judgment including quantum of the amount of Rs.1500/- per month. That being so, this Court would not find any reason to interfere with the impugned order. Consequently, this Civil Revision Application being devoid of any merit is hereby dismissed with a direction to the petitioner to pay both the arrears and current amount of maintenance as directed by the court below within a period of three months from the date of receipt/production of a copy of this order, failing which the Court below would be at liberty to take an appropriate steps for realization of the aforementioned amount of maintenance in accordance with law. (Mihir Kumar Jha, J.) Abhay Kumar