IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56128 of 2006 RAMDHAN PANDIT, SON OF RAMCHANDRA PANDIT, RESIDENT OF VILLAGE-KHANPURA, P.S. PALIGANJ IN DISTRICT-PATNA. ………………………………………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR 2. PUSPA DEVI, DAUGHTER OF DASHRATH PRAJAPATI, RESIDENT OF VILLAGE-RAMPUR CHAY, P.S. KARPI IN DISTRICT-ARWAL (BIHAR). 3. BABI KUMARI, DAUGHTER OF PUSPA DEVI, S/O SRI DASHRATH PRAJAPATI, RESIDENT OF VILLAGE-RAMPUR CHAY, P.S. KARPI IN DISTRICT- ARWAL (BIHAR). …………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Birendra Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. Santosh Kumar Sinha No.II, Arvind Kumar Singh and Ravindra Kumar, Advocates. ------------- O R D E R The opposite party-husband in a proceeding under Section 125 Cr.P.C. being Misc. Case No.31 of 2001, has prayed for the quashing of the order dated 7.9.2002 passed therein by the learned Sub Divisional Judicial Magistrate, Jehanabad, whereby the petitioner has been directed to pay a sum of Rs.400/- and Rs.200/- respectively to O.P. Nos.2 and 3 herein respectively every month by way of maintenance and the consequential order dated 21.6.2006 passed in Criminal Revision No.82 of 2002 by the learned Presiding Judge, Fast Track Court No.III, Jehanabad, whereby he has dismissed the revision preferred against the order dated 7.9.2002. The wife, Puspa Devi and the minor daughter, Babi Kumari, the applicants in the Misc. Case and impleaded herein as O.P. Nos.2 and 3 - 2 - respectively had preferred the Misc. Case seeking the maintenance from the petitioner herein under Section 125 Cr.P.C. as they were not being maintained by the husband or the in-laws ever since she gave birth to a daughter after the first child born out of the wedlock did not survive and when she conceived for a second time her father brought her over to her naiher where the child was born, and she was not in a position to maintain herself and the child. Allegation of demand for scooter was made by her father-in-law as pre condition to allow Puspa to return back to the matrimonial home. Efforts to pacify the matter went in vain. The petitioner appeared in the aforesaid proceeding and filed a show cause stating that Puspa Devi had left the matrimonial house of her own accord and without giving information. It was also alleged that Puspa in the meanwhile had married one Hari Narayan Yadav of Village- Akhtiyarpur (Paliganj) and she was living with her and Babi Kumari had been born out of that wedlock and on this premise the petitioner sought to establish his case for non payment of maintenance as Puspa was living in adultery and Babi was an illegitimate child. The trial court as also the revisional court on going through the evidence adduced by the parties did not find substance in the submissions raised by the petitioner. The learned Magistrate was of the view that even if Babi Kumari was an illegitimate child, the petitioner was duty bound and responsible to maintain her. It also came to the conclusion that as the petitioner had not been able to prove that Puspa was living in adultery he was also responsible and duty bound to maintain her. The Magistrate also noticed that efforts by him to request the petitioner to enter into the - 3 - conciliation with Puspa did not evince interest from his end as he had already solemnized a second marriage and was not ready to keep Puspa and the baby child. The revision preferred by the petitioner did not succeed as the revisional court did not find any requirement for interfering with the order passed by the learned Magistrate. The object of Section 125 Cr.P.C. as interpreted by the Hon’ble Apex Court is that it is a measure of social justice falling within the constitutional sweep of Articles 15(3) and 39 of the Constitution of India enacted to protect the weaker section like women and child, a secular safeguard irrespective of the personal laws of the parties. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and child as also indigent parents so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The Apex Court also held that the jurisdiction of the Magistrate was preventive and not remedial and certainly not punitive. Admittedly, Ramdhan Pandit, the petitioner herein, had filed Matrimonial Case No.46 of 2005 which was disposed of on 25.7.2007 by the Principal Judge, Family Court, Jehanabad decreeing the suit and dissolving the marriage between Ramdhan Pandit and Puspa Devi. The order of the Principal Judge is available on record and it appears from paragraph-4 thereof that in his deposition in the suit the applicant, Ramdhan Pandit, had stated that he was married with Puspa in the year 1985 and her wife came to his house. He has further stated that in 1990 he went to Delhi and there he joined a service on monthly salary of Rs.1200/- - 4 - and added that his wife wanted to live with him but he refused to this proposal because his salary was very low and on this she went away to her maika and she also used to go regularly to her maika. Later on , he came to know that his wife in the year 1998 got herself married with one Hari Narayan Yadav and at present she is his wife and there is no hope for her returning back to applicant’s house as she does not want to live with him. This order of the Principal Judge appears to be ex-parte since it is mentioned therein that although Puspa appeared but she did not file any written statement nor had taken part during the recording of statement of the witnesses. Be that as it may, the order in the Maintenance Case, dated 7.9.2002 was passed much before the passing of the ex-parte decree in the Matrimonial Case and the petitioner herein never sought to bring on record of the Matrimonial Case that there already existed an order of a Judicial Magistrate directing him to pay maintenance to Puspa Devi and her child and that the said order had been affirmed in revision by order dated 21.6.2006 which also had been passed before the order in the Matrimonial Case. Admittedly, the petitioner herein, in order to surreptitiously procure an order in his favour had suppressed cogent and material facts regarding the existence of an order of a competent court regarding the finding of the existence of the relationship of husband and wife between the petitioner and Puspa Devi. It is by now well settled that a father is liable to maintain his child whether legitimate or illegitimate and as held by the Apex Court in - 5 - Boomi Vs. Leela reported in 1977 Cr.L.J. 342 and Savita Ben Vs. State of Gujarat, reported in 2005(2) PLJR 160(SC), the child’s right is separate from that of the mother. The fact which arise from the discussions made above is that whereas the husband in the Maintenance Case had not been able to prove the essential facts, i.e., wife, Puspa Devi, is living in adultery with Hari Narayan Yadav after contacting marriage with him and that Babi Kumari was born out of that illegitimate marriage and the same found approval in Criminal Revision from the Sessions Court in the Matrimonial Case, the husband has obtained an ex-parte decree of dissolution of marriage on the ground of the wife living in adultery but this order of the Family Court was made only on 25th of July, 2007. Even if the order in the Matrimonial case is taken for granted, the wife, Puspa Devi and Babi Kumari, were entitled to maintenance till the passing of the order by the Family Court. There is no dispute that the petitioner, Ramdhan Pandit, was not married to Puspa Devi. This fact is accepted in the order of the Matrimonial Case. In the aforesaid circumstances, I find no merit in this application which is accordingly dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 25th of November, 2008. Pradeep Srivastava/A.F.R.