IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.210 of 2007 ARUN KUMAR @CHAUDHARY Versus THE STATE OF BIHAR & ANR With C.R. No.369 of 2008 ARUN KUMAR CHAUDHARY Versus BABY DEVI ----------- 2 19.8.2008 Heard Counsel for the petitioner. In the opinion of this Court, the impugned order dated 4.12.07 in a proceeding under Section 125 of the Code of Criminal Proceeding which has been assailed in Civil Revision No. 369 of 2008 does not suffer from any infirmity inasmuch as the Court below has analyzed the entire material on record including the evidence led by the parties to come to a conclusion that there is admitted relationship of husband and wife between the petitioner and the opposite party Baby Devi and that the petitioner despite the first marriage with Baby Devi had also entered into a second marriage with another lady and therefore, the petitioner was required to maintain the first wife Baby Devi. In that view of the matter, a grant of Rs. 1,000/- per month by way of maintenance in the impugned order dated 4th December, 2007 cannot be said to be either illegal or excessive. As with regard to the grievance of the petitioner in Second Revision Application C.R. No. 210 of 2007, 2 against the impugned order dated 31.10.2006 passed in Matrimonial Case No. 8/03 (under Section 24 of the Hindu Marriage Act) which has been filed by the petitioner seeking divorce from his wife Baby Devi, the Court below has recorded that not only the petitioner has to maintain his first wife but there is also an issue namely Chanda Kumari, the daughter of the petitioner who has to be also maintained. Considering this aspect of the matter when the Court below wanted to pass an order of maintenance, the petitioner came out with a defence that the Court below cannot do so on the ground that a proceeding for maintenance under Section 125 of the Code of Criminal Procedure was also pending. The Court below has considered this aspect and taking spirit the provision of Section 24 of the Hindu Marriage Act has passed an order that the petitioner must pay Rs. 2,000/- per month by way of maintenance pendentelite for maintaining herself as also the dependant daughter. In the opinion of this Court, even this order cannot be faulted and specially when it is found that the petitioner himself did not choose to contest the proceeding under Section 24 of the Hindu Marriage Act. That apart, when on the basis of material on record in both the cases, this much is clear that the petitioner had first entered into a marriage with opposite party Baby 3 Devi and had a child from that marriage and thereafter have forced them to contest the proceedings of a divorce suit filed by the petitioner, he has both the moral and legal obligation to support his wife and child specially when he is also having the means and luxury of supporting his second wife. The plea of the petitioner that he is unemployed or he is dependant on his uncle (Fufa) or that he has one bigha of land which can hardly contribute to have sufficient income are those pleas which have already been noticed by the Court below while examining the maintenance matter under Section 125 of the Code of Criminal Procedure and therefore, the plea of lack of income cannot be a ground for inflicting miseries on the wife and the child. This being so, this Court does not find any merit on either of the two civil revision applications and both of them are hereby dismissed with a cost of Rs. 5,000/- each taking into account that the petitioner did not any amount to his wife in last eighteen months from the date of impugned order dated 31.08.2006. The Court below is directed to realize the aforesaid cost from the petitioner and would also ensure that the amount of maintenance under Section 125 of the Code of Criminal Procedure as also Section 24 of the Hindu 4 Marriage Act under the impugned orders is realized from the petitioner within a period of one month from the date of receipt/production of a copy of this order. Rsh (Mihir Kumar Jha, J.)