IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.769 of 2007 DINESH KUMAR Versus STATE OF BIHAR & ANR ----------- 3. 15.9.2008. This revision has been filed against the order dated 3rd May,2007 passed by Family Court, Aurangabad in Misc. Case No.41 of 2003/118 of 2006 thereby the petitioner has been directed to pay maintenance of Rs.1500/- per month to the opposite party no.2. Heard the learned counsel for the petitioner as well as the opposite party. The marriage of the petitioner with opposite party no.2 is admitted. However, it is submitted on behalf of the petitioner that the entire order is bad and illegal. There is ample material on the record to show that the opposite party no.2 was leading adulterous life after the marriage. In support of it, Annexure-1, the statement of the opposite party no.2 recorded under section 164 Cr.P.C. has been filed. It is further submitted that in view of Sub Section (4) of Section 125 of the Cr.P.C., the opposite party is not entitled to get any maintenance. On the other hand, the learned counsel for the opposite party no.2 submitted that the statement recorded under section 164 Cr.P.C. is not sufficient to prove the charge of the adultery. Sub Section (4) of Section 125 of the Cr.P.C. runs as follows : “ 125(4). No wife shall be entitled to receive an allowance for the maintenance or the - 2 - N.H./ interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” In this very case, it appears that after the marriage, the opposite party no.2 fled away from her matrimonial house along with Dhananjay and Chandra Shekhar for which a criminal case was registered as Rohtas P.S. Case No.67 of 2003. In that very case, the statement of the opposite party no.2 was recorded by the Magistrate under section 164 Cr.P.C., which is Annexure-1. On perusal of the Annexure-1, it is quite apparent that the opposite party no.2 voluntarily left her matrimonial house along with Dhananjay and Chandra Shekhar. She remained along with them for more than 40 days. During that period, she lead adulterous life with Dhananjay. In the facts and circumstances, it is quite apparent that Sub Section (4) of Section 125 Cr.P.C. is applicable in this case. The opposite party no.2 is not entitled to get maintenance being debarred under sub section (4) of section 125 Cr.P.C. Apparently, the court below has committed illegality by allowing the petition filed by the opposite partyno.2 under section 125 of the Cr.P.C. Accordingly, this application is allowed and the impugned order is hereby set aside. ( Ghanshyam Prasad )