IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.202 of 2008 JAGDISH SAH …PETITIONER Versus 1. STATE OF BIHAR 2. THAGIYA DEVI …OPP.PARTY/RESPONDENTS For the petitioner : Mr.A.K.Sharma & : Mr.Shyam Kr. Singh For O. P No.2 : None For the State : Mr.Jharkhandi Upadhyay,APP ----------- 03. 17.09.2010 Heard learned counsel for the petitioner. Nobody has appeared on behalf of o.p.no.2 in spite of service of notice. Learned counsel for the State is present. Petitioner is the husband. He is aggrieved by the order dated 13th December, 2007, passed by learned Principal Judge Family Court, Bettiah in Mainteance Case No.61/2002/87/2005 (Thagia Devi vs. Jagdish Sah). O. P. No.2 made a claim that she was neglected and not maintained by her husband. It is also her case that two sons, namely, Dularchand and Paras were born from the wedlock. Both of them are major and earning for themselves. The wife, therefore, claimed maintenance for herself. Both the parties adduced oral evidence and brought on record few documents. The witnesses produced on behalf of the wife supported the claim that the lady was the married wife of the petitioner(husband) and that two sons were born from the said wedlock. It has also been deposed that the husband after getting job in railways, solemnized second marriage and not maintaining the first wife Thagiya Devi. The 2 husband also adduced oral evidence. He took the stand that while he was away from home in connection with a job, his wife developed illicit relationship with his younger brother Ramnath Sah (P.W.2) and the two sons were born from the illicit relationship between his wife(Thagiya Devi) and his younger brother(P.W.2). The two other witnesses supported the stand of the husband(petitioner). Learned counsel for the petitioner submits that a Panchayti was held on 13.12.1997 between the parties which has been referred to and relied upon by learned trial court in order to record a finding that Thagiya Devi was legally married wife of Jagdish Sah. It is stated that the aforesaid documents also indicates that it was found at ‘Panchayti’ that Thagia Devi was having illicit relationship with the younger brother of the husband(petitioner) and, as such, she was not entitled to any maintenance and/or share in the property of the husband (petitioner). Learned trial court has not attached any credence to it and their depositions on the plea that admittedly the husband(petitioner) had solemnized the second marriage with one Prabhawati Devi. It appears that the two sons, namely, Dularchand and Paras have not been produced by either party as witnesses. This was also relevant consideration while deciding the issue raised in the present case. It is contended that the electoral roll prepared and published on 0.1.01.2003 reflects the correct position. According to learned counsel, this was sheer conjectures of the learned trial court that the electoral roll/ 3 voter list was manipulated. This Court is not profited by the submissions/pleas to be made on behalf of o.p.no.2 as nobody appeared on her behalf despite service of notice. In these situation, this Court is of the view that the entire matter should be re-considered by learned Principal Judge, Family Court in the light of submissions made by learned counsel for the petitioner noticed hereinabove. Accordingly, without setting aside the order impugned, this Court remits the matter back to learned trial court who shall afford fresh opportunity of hearing to the parties and thereafter will be at liberty to substitute the impugned order dated 13.12.2007 by a fresh order. It is made clear that the present order shall not come in the way of learned court below from passing a fresh order in accordance with law. hr ( Kishore K. Mandal )