IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33767 of 2006 MD. ZAKIR HUSSAIN Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr. Raghwendra Kumar Singh, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None O R D E R This application by the husband of the complainant, Shaheen Praveen, his wife, has been filed for quashing the order dated 27.12.2004 passed by Sri Saghir Alam, learned Judicial Magistrate, 1st Class, Katihar, in Maintenance Case No. 35 of 2001, Trial No. 775 of 2004 by which while allowing the petition under section 125 Cr.P.C. he has been pleased to direct the petitioner to pay Rs. 1000/- per month to her and Rs. 500/- per month for the minor daughter as maintenance. An additional prayer has been made for quashing the order dated 18.7.2006 passed by the learned Presiding Officer, Fast Track Court No. III, Katihar in Cr. Revision No. 18 of 2005, whereby while dismissing the revision preferred by the petitioner the Court has upheld the order of the learned Judicial Magistrate dated 27.12.2004. It may be stated at the very out set that although O.P.No. 2 the wife - applicant in the court below was duly noticed and validly served with notice on two occasions yet she has chosen not to appear in the application. The brief facts germane for consideration of this application is that Shaheen Praveen, the wife of the petitioner herein, - 2 - impleaded as O.P. No. 2 in this application, filed a petition under section 125 Cr.P.C. against the husband - petitioner stating inter alia that she had been married to the petitioner some four years back and soon after the marriage she was subjected to torture for dowry by her in-laws and as such she lodged one case being Barari P.S. Case No. 29 of 2000 which is pending for trial. She had been turned out of the marital house and she was staying with her parents along with the minor daughter born out of the wedlock with the petitioner. She has further alleged that the conditions of her poverty ridden parents were pitiable and not sufficient to maintain her and her minor child and the petitioner including her in-laws were liable to maintain her and her minor daughter by paying maintenance . The husband is said to be a rich man possessing 25 bighas of land , a pucca house, tractor, thresher, etc, and his income and that of his father is one of one and half lac . She also stated that she requires Rs. 2000/- per month for herself and Rs. 1000/- per month for her daughter towards maintenance. Assailing the impugned orders the main contention raised by the learned counsel for the petitioner is that during the pendency of the case he had divorced the O.P. No. 2 by “oral” talak and since he had already paid an amount of Rs. 13551/- on 5th August, 2002 he is not required to pay any further amount to her. While denying the assertions of the wife regarding his property and income it was submitted that he is a poor unemployed person. What is worth noticing here is that although the petitioner herein has stated that his - 3 - income is not sufficient but curiously he has not divulged what his actual income is and this very fact casts an aura of suspicion regarding the actual income of the husband and it may be safely presumed that the husband is purposely trying to hide the actual facts. Another aspect which one has to consider is that the petitioner has not filed any document or the copy of the statement of the witnesses in support of his case and as such I have got no option but to rely upon the judgment / order passed by the courts below. Both the courts below have succinctly dealt with and discussed all the points in detail. I am also in agreement with the observations with the learned Presiding Judge, F.T.C. that merely stating that talak had been given would not amount to a divorce and that this plea of divorce by the petitioner had not been taken at the earliest opportunity in his show cause but was pleaded only subsequently by way of rejoinder. What is of essence is that the wife is denying the fact of divorce. Where there is assertions of a fact by one side which is denied by the other, in such cases it is obligatory and bounded duty of the person who asserts to prove by cogent evidence, whether oral or documentary, the fact so asserted. The petitioner has taken the plea of the non maintainability of the petition under section 125 Cr.P.C. in respect of the minor child in view of section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This Act could have been pleaded if the fact of divorce had been proved beyond all reasonable doubts. If the divorce - 4 - itself has not been proved, the 1986 Act would not apply either to the petitioner or to the minor child since it is only after the woman has been divorced that the Act becomes applicable. This plea taken by the petitioner appears to be a plea of frustration. Both the courts below also appear to have taken pains to consider the sources of income of the petitioner as per record and I find no fault therewith. Having perused the order of both courts below I find no apparent illegality or impropriety with the orders impugned so as to interfere with them, moreso when the ambit of exercise of the powers under section 482 Cr.P.C. are of limited application. In the result I find no merit in this application which is accordingly dismissed. Patna High Court, Patna. Dated : The 29th of August, 2008 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)