IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1021 of 2008 DEONANDAN SAO Versus GODAVARI DEVI ----------- 2 18/7/2008 Heard counsel for the petitioner. The petitioner in this application has assailed the order of the court below dated 24.6.2008, whereby and whereunder, maintenance case has been decided by the court below awarding Rs. 2,500/- per month to the opposite party, wife. Counsel for the petitioner while assailing the aforementioned order of the Family Court has basically raised two issues, namely, that some documentary evidence especially the judgment of the criminal Court pertaining to some allegation under section 498 (A) of the I.P.C. has not been considered by the court below while holding the petitioner to be husband of the opposite party. He has next contended that the quantum of Rs. 2,500/- per month is beyond the materials on record. Sofar first question is concerned the case of the opposite party in her application was that she had been married to the petitioner some 42 years back, that would be some time in the year 1960. She has further stated that in fact after twenty years of married life and having been blessed a daughter, the petitioner had performed a second marriage with one Malti Devi in the year 1980. On the basis of the aforementioned averment, the petitioner claimed that after her daughter was also married she had none to support her and therefore she had filed an application on 2 24.6.2003 for maintenance under Section 125 of the Code of Criminal Procedure. The petitioner having appeared in the said case had taken a plea that the petitioner was not her legally married wife ( nor denying that the petitioner was not at all married to him). The court below has made a detailed consideration of the evidence on records including considering the judgment of the criminal court. In the said judgment, the court below has made analysis of different sets of evidence including the document showing customary proof of marriage between the petitioner and the opposite party. It has also taken in to consideration the events and facts of earlier interparty judicial proceeding wherein the petitioner had accepted that the opposite party is his first wife and had agreed to pay a sum of Rs. 500/- per month, which had became final on account of dismissal of the application filed by the petitioner before this Court. If all these facts were considered by the court below in exercise of power under section 125 of the I.P.C, this Court would be absolutely loath to interfere with the such concluded, findings of facts specially when there is also no jurisdictional error in such order. That apart, counsel for the petitioner could not substantiate even his part of submission that Malti Devi and not the opposite party i.e. Godavari Devi was the first wife of the petitioner. As a matter of fact records of the 3 case as well as earlier hallowed judgment of the criminal court under section 498 (A) of the I.P.C. did not record any such finding as with regard in the marriage of the petitioner with Malti Devi being valid and legal. Therefore, the court below had correctly come to the aforementioned findings which were sufficient to show that the petitioner was married to the opposite party. Infact in a proceeding under section 125 of the Cr.P.C. requirement of proof of marriage has to be gone into only by way of a prima-facie case. Reference in this connection may be made to the case of ‘Santosh Kumar Vs. Naresh Pal’ reported in 1998 (8) S.C.C. page 447. In that view of the matter, if the court below after considering the materials on record has come to a finding that the petitioner had been married to the opposite party, this Court would not interfere with such finding of the court below. As with regard to quantum of amount of maintenance if court would find that the petitioner is aged about 60 years. Submission of the petitioner, that the daughter has now left her on account of being married and is living separately would not require her to be paid any amount is only to be noted for its being rejected when the amount of maintenance has to be fixed by the court, the court cannot shut its eyes towards prevailing price index. In that view of the matter, if the petitioner is found to have income 4 of Rs. 60,000/- per month from his agricultural and/or substantial business, the amount of Rs. 2,500/- per month directed to be paid to wife- opposite party cannot be said to be excessive. In that view of the matter, there is no merit in this application. Accordingly, the same is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar