IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.967 of 2008 SMT. NIRMALA DEVI Versus BINDU PANDIT @ BINDO PANDIT ----------- 3 20/10/2008 Heard the parties. In this case the petitioner, wife has assailed the order passed under section 127 of the Code of Criminal Procedure only on the ground that earlier order of maintenance passed in her favour under section 125 of the Code of Criminal Procedure has sought to be interfered by the court below by holding that she was living in adultery. Counsel for the petitioner has submitted that the order of the court below was passed on the basis of a photograph which had been accepted without calling for and looking in to the negative thereof. He has also tried to explain that her two children could not have been borne out of second marriage as alleged against her. Counsel for the petitioner, however, was not in a position to explain conduct of the petitioner in course of proceeding under section 127 of the Code of Criminal Procedure, in as much as, the court below in 2 paragraph 16 of the impugned order has held that despite being given opportunity she did not even choose to contradict the allegation of living in adultery and did not get herself examined in course of 127 Cr.P.C. proceeding. The court below has taken into consideration all such materials on record and from a perusal of paragraphs 16 to 20 thereof it would be clear that what has really been recorded as finding of fact by the court, is that the lady was living in adultery and accordingly from that date of the year 2005, only she has been held to be disentitled for payment of maintenance. In that view of the matter, submission of counsel for the petitioner, that earlier order of the year 1990-92 would bind the husband as with regard to marriage in question, is of no consequence. As a matter of fact, a proceeding under Section- 127 Cr.P.C. always envisages of a subsequent development which would disentitle a lady from getting maintenance. Thus when the court below has recorded its finding of the petitioner living in adultery on the valid 3 materials, this Court would not find any reason to interfere with the impugned order. Accordingly this application, being devoid of any merit, is dismissed. ( Mihir Kumar Jha, J.) Abhay Kumar