IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2002 of 2008 FULENDRA YADAV Versus NIRASHA DEVI & ANR ----------- 2 5/12/2008 Heard counsel for the petitioner. The impugned order passed under section 125 of the Code of Criminal Procedure allowing maintenance for a sum of Rs.800/- for the wife and Rs.200/- for the minor daughter has been assailed by the husband-petitioner on the ground that as a matter of fact opposite party Nirasha Devi was never married to the petitioner and in fact was not legally married wife. Counsel for the petitioner initially tried to make a submission that the Court has not considered this aspect at all and has ignored to decide most vital issue as with regard to relationship of man and wife between the petitioner and the opposite party. This Court would really find that such effort of counsel for the petitioner was beyond the specific finding recorded by the court below. This Court has gone into this aspect with the help of evidence on record and has arrived at the finding 2 that there are materials on the records particularly the deposition of the witness produced by the wife from which it is clear that the petitioner was husband and merely because name of the petitioner in some record was Fulo Yadav that will not change the position under law. The fact with regard to relationship of wife and husband was sought to be proved by identifying the person. What really has clinched the issue, is that a nine years old daughter of the petitioner appeared in the dock and had made her statement in the court stating not only that the petitioner was father but also given details about the fight and differences which had taken place in past between the petitioner-husband and the opposite party-wife. It is very significant to note here that though this daughter of nine years had deposed in Court and had state all these facts, yet the petitioner and/or his counsel did not choose to cross-examine the daughter though cross-examination of other witnesses including wife was done at 3 length by the petitioner and/or his counsel. This would go to show that the petitioner was really apprehensive to be held liar at least in the eyes of his daughter. Next submission that there was no finding recorded with regard to income, has also to be noted for its being rejected. The Court has gone into this aspect and has fixed only an amount of Rs.800/- per month for the wife and Rs.200/- for the school going daughter. Maintenance of two persons in a sum of Rs.1000/- per month, that too for also bearing expenditure on education of the child, in those days is impossible, but the Court has awarded this meagre amount only after considering the restricted means of income of the petitioner. That being so, this Court would not find any error in the impugned order and accordingly this application being wholly misconceived is hereby dismissed. Petitioner is directed to pay arrears and current amount of maintenance within a period of one month from the date 4 of receipt/production of a copy of this order, failing which the court below must take appropriate steps for realization of the amount. (Mihir Kumar Jha, J.) Abhay Kumar