IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.409 of 1998 ISLAM MIAN son of Yusuf Mian @ Isu Mian, resident of village Manjhi Mian Patti, P.S. Manjhi, District – Saran. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. Madina Khatoon D/o Sulaiman Mian, Resident of Village- Pahiyan Dhala, P.S. Revelganj, District- Saran. . . . . Respondents. For the Petitioner : M/s. Anis Akhtar : Md. Rashid Alam, Advocates For the State : Mr. Chandan Kumar Verma, AC to AAG-8 For Respondent no.2 : Mr. Gayanand Roy, Advocate ----------- 6/ 13.08.2010 Heard learned counsel for the parties. This case is chequered one. Respondent no.2 Madina Khatoon filed an application under Section 125 of the Cr.P.C. on 08.12.1987 for her maintenance as well as maintenance of her two children. The petition was registered as case no. M 14 of 1987. After hearing the parties, the learned Magistrate vide order dated 01.07.1989 allowed maintenance of Rs. 200/- for the respondent no.2 and Rs. 50/- for her minor children. The petitioner preferred a revision bearing Cr. Rev. No. 178 of 1989. The learned Sessions Judge, Chapra vide his order dated 24.09.1990 modified the amount of maintenance. The revisional court directed that the petitioner would be liable to pay Rs. 100/- per month from 08.12.1987 to 30th June, 1989 and thereafter at the rate of Rs. 200/- per month from 1st July, 1989. Thereafter petitioner filed a petition dated 16.08.1991 under Section 127 of the Cr.P.C. before the learned Magistrate that he has already given Talaqunama to respondent no.-2 on 06.04.1990 and as such she would not be entitled to realize any amount of maintenance after 06.04.1990. The aforesaid application was again rejected on 2 26.07.1991 by the learned Magistrate. A revision application bearing Cr. Rev. No. 316 of 1991 was preferred against the aforesaid order dated 16.09.1991, which was rejected on 24.02.1994. The respondent no.2 filed a petition before the Magistrate for arrears of maintenance, which was allowed. The petitioner again filed a revision before the revisional court bearing Cr. Rev. no. 74 of 1996. The aforesaid revision was disposed of vide order dated 15.10.1996, as contained in Annexure-4, with a direction to the Magistrate to pass specific order in respect of divorce. In the meantime, the petitioner was arrested and released on bail. The learned Magistrate after hearing the parties held that the petitioner has failed to satisfy the court the factum of divorce. The petitioner preferred Cr. Revision No. 186 of 1997, which too was dismissed by order dated 23.12.1997. Thereafter he moved this Court in this writ application. This Court by order dated 03.12.1998 admitted the application, issued notice and directed that petitioner would not be required to pay maintenance pending final hearing after 16.08.1991. Learned counsel for the petitioner submits that earlier there was reference in order of trial court that the matter be placed before the Lok Adalat, which eventually did not take place. Learned counsel further submits that it would appear from the order of revisional court that a sum of Rs. 8262/- has already been paid. He further submits that the learned Magistrate ought to have held that the petitioner had divorced respondent no.2 on 06.04.1990 and as such there was no requirement to pay any further maintenance. 3 Mr. Gayanand Roy, learned counsel for the respondent no.2 submits that petitioner has concocted the story of divorce to avoid paying maintenance. He further submits that in case, the petitioner has divorced respondent no.2 on 06.04.1990, he should have taken this plea when the matter was before the revisional court in Cr. Rev. No.178 of 1989, which was disposed of only on 16.09.1991. Absence of such plea would show that petitioner is trying to make out a fake case of divorce. Heard the counsel for the parties. The Hon’ble Apex Court in the case of Shamim Ara Vs. State of U.P. reported in (2002) 7 SCC 518 as well as this Court in case of Musarat Jahan & Ano. Vs. State of Bihar and Another, reported in 2008(1) PLJR 836 has held that mere assertion of the fact that the Talaque has been given, could not be itself treated as Talaque been affected, in absence of procedural norms and concrete materials thereof. In this view of the matter, I do not find any illegality in the order of the learned Magistrate holding that the petitioner has not been able to prove the factum of Talaque and as such respondent no.2 would be entitled to the maintenance as directed by the revisional court in Cr. Rev. No.178 of 1989, which was disposed of on 16.09.1991. A sum of Rs. 8226/-, which has earlier been paid by the petitioner that will be adjusted towards arrears. Now as of dates as Principal Judge, Family Court has vested with the jurisdiction to look into the matter regarding the maintenance etc. As such, this Court observes that the Principal Judge, Family Court would issue necessary direction to the petitioner to pay 4 the arrears of maintenance amount. It is an old case and the counsel are not able to say whether compromise has arrived at between the parties. This Court further observes that this order would be subject to any compromise that may be arrived at between the parties. The Principal Judge, Family Court would ascertain such compromise by asking the parties to appear in person before the court. This Court further observes that in case, no compromise is arrived, petitioner would be given reasonable time to pay the arrears. With the aforesaid observation, this case is disposed of. Uday/ (Samarendra Pratap Singh, J.)