IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.261 of 2008 SITA RAM MISHTRI Versus THE STATE OF BIHAR & ORS ----------- 7 12.5.2009 The counsel for the petitioner is present. No one is present for the opposite parties despite service of notice. The petitioner is aggrieved by order dated 13.12.2007 passed by the learned Principal Judge, Family court, Samastipur, in Civil Misc.Case No.41/06 by which he has directed the Executive Engineer ( Mechanical), Irrigation Department, Koshi Colony, Donar, Darbhanga, to deduct Rs.2400/- per month from the salary of the petitioner and send the same to O.P. no.2 through bank draft. He further directed O.P.no.2 to furnish the details of arrears of maintenance and the employer was directed to deduct 1/3rd of the petitioner’s salary and pay the same through demand draft to O.P. no.2 Anita Devi. O.P.no.2 filed a maintenance case under section 125 Cr.P.C. both on her behalf as well as her minor children. It appears that the petitioner did not appear in the aforesaid maintenance case and as such the order was passed ex parte in favour of O.Ps. no.2,3 and 4 vide order dated 21.1.2006 in Misc. Case No.115/ 04. The learned court below directed the petitioner to pay Rs.800/- per month as maintenance to the wife and Rs.700/- each to her children O.P.No.3 and 4, and further Rs.4000/- as cost of the litigation. Copy of the Judgment is being annexed as Annexure-2. 2 Learned counsel submits that thereafter on account of intervention of their well wishers, a conciliation was arrived at between the parties and a petition on their behalf on 3.1.2007 was filed for compromising the matter and for making the Judgment passed in Misc. Case No.115/04 inoperative. The petitioner has got his two sons admitted in school also. Before any order on the compromise petition could be passed the O.P. No.2 detracted from the compromise. He submits that O.P. no.2 has assigned no reason for not living with him. Thus he contends that O.P. No.2 would be entitled to maintenance from 21.1.2006 up to 3.1.2007, as the Judgment and order has been passed on 21.1.06 in Misc. Case No.115/355 of 2004/05. From 3.1.2007 the O.P.no.2 would not be entitled to maintenance. He submits that O.P no.2 is his 2nd wife and he has a minor son also from his late first wife to take care of . He submits that O.Ps. no.2, 3 and 4 are staying in his village even today. He states that O.Ps. no.3 and 4 are studying in Government Middle School, Rampur Dayal since January 2007. As O.P.No.2 did not choose to appear, this Court is not able to decide the respective claims of the sides. As per the petitioner’s version, the sons are studying in a local school in his village- Rampur Dayal since January,2007. According to the petitioner he has to take care of minor son got from his first wife also, who is no longer alive. In the aforesaid circumstance, this Court has no option but to remit the matter to the learned Principal Judge to decide the issue afresh, in view of the evidence that may be led from both sides. The 3 Principal Judge would also direct the petitioner to produce latest pay slip in order to ascertain his salary. Pending final disposal of the case by the Principal Judge, the petitioner is directed to pay ad-interim maintenance at rate of Rs.1,800/- to O.P. No.2 by 10th of each subsequent month. He would pay the arrears also at the aforesaid rate with effect from 21.1.2006. The arrears would be deducted from his salary and would be paid to O.P.No.2 in 12 equal monthly instalments. In case, if any previous arrear has been deducted from his salary and paid to O.P. No.2, the same would be accordingly adjusted. With this observation the revision application is dismissed. Anilkr.sinha (Samarendra Pratap Singh, J. )