IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.30 of 2008 ASWANI KUMAR SINHA SON OF LATE RAMASISH PRASAD, R/O- VILLAGE SIHMA, P.O.- SIHMACHAK, P.S.- KHODAWANDPUR, DISTRICT- BEGUSARAI, AT PRESENT WORKING TO THE POST OF ASSISTANT IN THE OFFICE OF CIRCLE OFFICER, ROSERA, DISTRICT SAMASTIPUR. Versus 1. THE STATE OF BIHAR 2. SAVITRI DEVI, WIFE OF ASANI KUMAR SINHA 3. PRINCE KUMAR MINOR SON OF ASWANI KUMAR SINHA, BOTH ARE RESIDENT OF VILLAGE SIHMACHAK, P.S.- KHODAWANDPUR, DISTRICT- BEGUSARAI AT PRESENT RESIDING AT VILLAGE PANTAPUR, P.S.- KALYANPUR, DISTRICT- SAMASTIPUR. For the petitioner : Mr. Ashok Kumar Mishra, Advocate. For the State : Mr. Jharkhandi Upadhyay, APP ----------- 7 23.09.2010 Heard learned counsel for the petitioner. No body has appeared on behalf of O.P. nos. 2 and 3. State is represented by learned A.P.P. Learned counsel for the petitioner challenges the order impugned dated 5th February, 2007 passed in Maintenance Case no. 16/2003 (Savitri Devi & Anr. Versus Ashwini Kumar Sinha) whereby learned Principal Judge, Family Court on a consideration of the materials on record including oral and documentary evidence came to the conclusion that the applicants (wife and son of the petitioner-husband) deserve payment of maintenance in the sum of Rs. 2500/- per month to the wife and Rs. 1,000/- per month to his son. A lump sum of Rs. 3,000/- as litigation cost was also directed to be paid. Learned counsel for the petitioner submits that in the application filed under Section 125 of the Code of Criminal Procedure (for short the Code), no averments/allegation has 2 been made that the wife was tortured and neglected by the petitioner-husband. Learned trial court dealt with the aforesaid aspect of the matter in paragraph 6 of the order which reads as under: “ I have gone through the statements of the applicant and her other witnesses and have also perused the maintenance application. In the maintenance application, it is not stated that the O.P. has willfully neglected to maintain the applicant and her minor son and there is also no reason assigned so as to give her a reasonable ground for living separately from the O.P. However, the applicant Sabitri Devi A.W. 1 in her statement has stated that she was married to the O.P. on 12th day of June, 1995 according to the Hindu rites and customs. She has a son through the O.P.. In the marriage, there was no demand of dowry as the O.P. was unemployed. After three or four months of the marriage, he got a Government job on compassionate ground. Thereafter, he demanded rupees two lacs and a Hero Honda Motorcycle and began to torture her physically and mentally and lastly, turned her out of the house. The L.P. has willfully neglected to maintain her and her son. He has also performed his second marriage to satisfy his greed of dowry. She is unable to support herself and her son. The O.P. is presently posted as Nazir in Singhiya block, Samastipur. Thus, her evidence contains all the ingredients required for the claim of maintenance. She is little educated and rustic lady. This proceeding is under the code of criminal procedure for maintenance where the rules of pleadings cannot be strictly applied. Therefore, in my opinion, the omissions occurred in the maintenance application as stated earlier, is not fatal to the claim of maintenance. Ram Vati Devi, A.W. 2 in her evidence has stated nothing about the torture of the applicant, but she has also supported that the O.P. has contracted his second marriage. Since this witness, as it appears from her address, does not come from the parental or matrimonial village of the applicant, therefore, she cannot be expected to have personal knowledge about the torture of the applicant. Hence, the evidence of the applicant in this regard cannot be thrown out or outrightly disbelieved. Moreover, both A.W. 1 and A.W. 2 have stated that the O.P. has solemnised his second marriage. A.W. 2 appears to have been cross-examined by the O.P., but she has not been given suggestion that the O.P. has not contracted his second marriage. “ 3 This Court finds from the order impugned that the petitioner willfully defaulted in appearing before the Court. No evidence was adduced on his behalf. He was, however, given adequate opportunity to cross-examine the witnesses adduced on behalf of applicant-wife. Learned trial Court on a consideration of the entire materials on record found as under in paragraph 7: “From the above discussions, I come to a clear conclusion and hold that the applicant Sabitri Devi and her minor son Prince Kumar are entitled to get maintenance from the O.P. Further, as regards the quantum of the maintenance, there is no dispute that the O.P. is an employee in Singhiya block, Samastipur. The record shows that the O.P. has not denied in his any application or during the reconciliation proceeding that he holds the post of the Nazir. So, I think Rs. 2,500/- (Rupees two thousand five hundred) per month to the applicant Sabitri Devi and rupees 1,000/- (one thousand) per month to the minor son Prince Kumar for their maintenance and a lump sum amount of Rs. 3,000/- (Three thousand) as litigation cost to Sabitri Devi would be just and proper to serve the ends of justice. “ In my view, the consideration of the matter by learned court below does not suffer from any illegality and/or impropriety meriting interference. There is no merit in this application. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )