IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3693 of 2001 SUMAN KUMAR @ SHAMBHU SINGH Versus STATE OF BIHAR & ANR ----------- 04 04.03.2009 Heard learned counsel for the petitioner. Nobody appears on behalf of State or on behalf of opposite party no.2, Geeta Devi, who claims to be the wife of the petitioner and in that capacity she was allowed maintenance by order of learned Judicial Magistrate, Samastipur in Misc. Case No. 84 of 1994, Tr. No. 248 of 1997 under Section 125 of the Code of Criminal Procedure. Against the order allowing maintenance of Rs.400/- per month to opposite party no.2, the petitioner had come to this court through Cr. Revision No. 740 of 1996 but the revision application was dismissed on 13.03.1997. Later in a case lodged by opposite party no.2 under Sections 323/ 498A of the Indian Penal code, the petitioner was acquitted after full fledged trial with a finding that the opposite party no.2 failed to prove the factum of alleged marriage. Armed with such a judgment petitioner, preferred a petition before the learned Magistrate on 09.12.1999 praying for dropping of the proceeding under Section 125 of the Code of Criminal Procedure so as to absolve him from the liability of paying further maintenance to opposite party no.2. Such petition was rejected by the learned Magistrate by order dated 10.01.2000 and subsequently for realizing the arrears of maintenance, Distress Warrant was issued against the petitioner and against one such order dated 06.01.2001, petitioner - 2 - came to this court with the present application. He has prayed for quashing the order dated 06.01.2001 as well as for quashing the entire maintenance proceeding on account of finding by the criminal court noticed above. That judgment of Judicial Magistrate, 1st Class, Samastipur dated 24.04.1999 has been annexed as Annexure-3. Section 127 of the Code of Criminal Procedure permits review of an order of maintenance on various grounds including in consequence of any decision of a competent Civil Court. The learned Magistrate refused to cancel the order made under Section 125 of the Code of Criminal Procedure at the instance of the petitioner by drawing a distinction between an order passed by a competent Civil Court and by a Criminal Court. This Court does not find any good reason to take a different view so far as interpretation of Section 127 of the Code of Criminal Procedure is concerned, the legislature has used the terms “Civil Court of competent jurisdiction” and it would not be appropriate for this court to interpret the same to mean and include order of a Criminal Court as well. However, since the finding that opposite party no.2 has failed to prove the factum of marriage has been arrived at in a proper trial, the same has to be given due weight for considering the petitioner’s prayer for dropping the proceeding and varying the order under Section 125 of the Code of Criminal Procedure. The proceeding under Section 125 of the code of Criminal Procedure is only summary in nature and therefore, finding given by a Magistrate in a criminal trial will definitely have persuasive value to a considerable extent - 3 - unless the opposite party no.2 is able to prove the same from reliable material which she could not produce before the trial court, whose judgment is relied upon by the petitioner. In view of the aforesaid discussions, this quashing application is disposed of with a direction to the learned Magistrate to reconsider the petitioner’s prayer for dropping the proceeding which was earlier rejected by order dated 10.01.2000. The court below shall pass an appropriate order in accordance with law as early as possible preferably within three months from the date of receipt of a copy of this order. Uday/ (Shiva Kirti Singh, J.)