IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2430 of 2007 SAMIR KUMAR SINGH @ MD. SAMIR KHAN @ SAMIR KUMAR Versus AFSANA KHATOON & ANR ----------- 4. 5.9.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order awarding maintenance of a sum of Rs. 1000/- for the wife opposite party and Rs.500/- for the minor child under section 125 of the Code of Criminal Procedure does not suffer from any infirmity. The plea of the petitioner that the court below failed to examine most crucial fact as to whether there was a subsisting marriage between the petitioner and the opposite party is a plea of desperation. The petitioner despite being served with notice of the proceedings did not choose to appear or controvert the allegations made by the opposite party. A finding to this effect has been recorded in the impugned order and has not been sought to be either explained much less assailed by the counsel for the petitioner while pressing this application. The question of sufficiency of evidence as with regard to factum of the 2 marriage would definitely be dependent on the fact controverting the marriage. If there was no denial to the facts mentioned by the opposite party wife in her application, the court below was not unjustified in relying on her statement as also the statement of other witness including the brother of the wife opposite party, for coming to a conclusion that the petitioner was the husband and the opposite party was the wife. Normally no married woman in India would claim to be married to a particular person and also claimed that she was blessed with a child out of such marriage. Therefore, whenever the challenge to the factum of marriage is thrown, the person taking such a plea is not only required to raise such an objection at the earliest but also prove the same before the trial court. As noted above the petitioner never did so. In that view of the matter, mere non-examination of the Maulvi in whose presence the marriage was performed or non- production of Nikahnama will not vitiate the finding on the issue of marriage between the petitioner and the opposite party. 3 The submission of the petitioner that the opposite party being a Bangladesi woman has already been married to some other person and as such was not entitled to be the wife of the petitioner has to be also noted for its being rejected for a simple reason that it is an admitted fact that the petitioner did not raise such a defence or bring any material in this regard to the notice of the Court below and in fact remained absent in course of the proceedings conducted in the court below without any reasonable course. Secondly, a photograph to be produced before this Court by the counsel for the petitioner cannot lead to a conclusion that such a photograph is of the first husband of the wife opposite party. That apart from the materials on record it appears that the opposite party is Muslim and therefore, when the marriage of the petitioner with the opposite party was said to have been performed as is asserted by the opposite party in her application filed by her in the court below and not controverted by the petitioner, it would be very difficult for this court to hold that such 4 marriage had taken place during the subsistence of a marriage of the opposite party with the person in the photograph. Accordingly, this submission of the learned counsel also must fail. The last submission throwing blame on the character of the opposite party wife that she was an accused in a complaint case for various offences including Section 376 of the Indian Penal Code and therefore, the same would discredit her to the extent of her being denied the amount of maintenance, would only show the clever approach of the petitioner, who is non-else but a constable in the Police Department. It is well known that the correctness of such allegations in the complaint case is yet to be established and in any event they by themselves cannot be a circumstance to deny the amount of maintenance to the wife opposite party. This Court would also not find anything unreasonable or excessive with the amount of maintenance especially when this has come on record that the petitioner is an employed person in police service as a constable and can definitely pay a sum of 5 Rs. 1,500/- towards the maintenance of the wife and a child in terms of Section 125 Cr.P.C. That being so, this Court would not find any merit in this application, which is accordingly dismissed with a direction to the petitioner to pay the arrears and current amount 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 coercive steps including attachment of salary of the petitioner till the realization of amount as directed in the impugned order. ( Mihir Kumar Jha,J.) Surendra/