IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.632 of 2008 SACHIDANAND MEHTA Versus PRABHA DEVI & ORS ----------- 2 19.9.2008 Heard Counsel for the petitioner. The petitioner is aggrieved by an order dated 4.2.2008 passed under Section 125 of the Code of Criminal Procedure (Cr.P.C.) whereby and whereunder the Court below in a proceedings under Section 125 Cr.P.C. has directed the petitioner to pay a sum of Rs. 1500/- per month to the wife and Rs. 500/- per month for the two children out of marriage till the date of their attainment of majority. The operative portion of the order reads as follows:- “------Accordingly, it is ordered that the O.P. No.1 would pay at the rate of p.500/- per month from the date of application to Dec. 2004 to the petitioner no.3. Rs. 500/- per month from the date of application to 1996 as on the date of deposition in the year 1990 he was 12 years, so on majority it would be stopped and petitioner no.4 is allowed Rs. 500/- per month from the date of application to Jan. 2003 as it is stated by the petitioner that petitioner no.4 was married in the said year and From Dec.’ 04 only the petitioner no.1 would be paid Rs. 1500/- per month till her life keeping in view the increased cost of living.-------” 2 Counsel for the petitioner submitted that the impugned order is bad because no evidence has been recorded by the Court below that wife had no sufficient means of income to maintain herself. In this regard, this Court would only refer to the depositions which have been considered by the Court below in its long eight pages order for arriving at a conclusion that it was on account of neglect by the petitioner on his wife that she had filed this application for claiming maintenance for herself and her dependent children. Such consideration of evidence by way of deposition of P.Ws. 1 to 4 is in conformity with the original case of the wife in her application where she had categorically stated that on account of the petitioner entering into second marriage during subsistence of the first wife with one Prabha Kumari, applicant before the Court below, she had been forced to live separately and due to cruelty, ill treatment and assault, she had to seek shelter of the Court inasmuch as she had no source of income to maintain herself and her dependent children. Before this Court, the rejoinder filed to such application has also not been produced and therefore, if the findings recorded in the impugned order is perused, it would be clear that the opposition to such claim of the Prabha Devi the wife- opposite party was not on account of any other reason 3 including her having no source of income rather the pleadings for denial of such amount of maintenance was that she (Prabha Devi) was living as an unchaste life (in adultery) and was a characterless women and therefore, she was not entitled to get any amount. It is well settled that a plea will only be developed and issue will emanate out of it when a party asserts and the other denies. The wife Prabha Devi in this case had specifically asserted that she had no source of income but that was never sought to be denied. If that be so, the Court below while on the basis of the weight of evidence in the form of an oral deposition, has come to a conclusion that wife was being neglected by the petitioner and she was entitled to get such amount of maintenance for supporting herself and her depending children the same cannot be held to be bad on any court. Consequently, there is no merit in the first submission. Coming to the second and the last submission of the petitioner that he had already offered eleven acres of land and a pucca house in Saharsa and to this extent, he had also filed an application before the Court below as contained in Annexure-1, but that was not considered by the Court below, in the opinion of this Court would also not vitiate the impugned order. It is not the requirement of law that once wife and children is 4 allowed to be entitled for payment of amount of maintenance, they can be shown some agricultural land by way of the amount of maintenance. The petitioner again cannot make premium that his wife and children are living in a house which belongs to him and which he intended to transfer to them. It is on record that the house still belongs to the petitioner and therefore, the wife and the children are at best having a right of residence therein. On that score, the Court below could not have decided the issue of maintenance. If the petitioner was so sanguine, he could have very well sold away his aforesaid property and could have given a substantial consolidated amount out of which the monthly amount as fixed by the Court below could have been secured. That was however, not the offer of the petitioner and therefore, the Court below rightly did not take into consideration such meaningless and useless application. A question therefore would arise that when the petitioner has already married second lady during the subsistence of the first marriage with opposite party- Prabha Devi and has also an assured source of income by way of his pension on account of his being a retired Village Level Worker (VLW), which fetches him pension in addition to other source of income including from his 5 agricultural property, can this Court find any justifiable reason to interfere with the impugned order. An obvious and infact the only answer will be in negative. Accordingly, this civil revision application, being wholly misconceived, is hereby dismissed with a direction to the petitioner to pay both arrear and current amount as directed by the Court below within a period of one month from the date of receipt/production of a copy of this order failing which, the Court below shall take proper coercive step against the petitioner. With the aforementioned observations and directions, this civil revision application is hereby dismissed. Rsh (Mihir Kumar Jha, J.)