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2002 DIGILAW 182 (PAT)

Bhupendra Prasad Yadav v. State Of Bihar

2002-02-07

CHANDRAMAULI KR.PRASAD

body2002
Judgment Chandramauli Kumar Prasad, J. 1. This revision application is directed against the order dated 8-5-2000 passed by the Sub-Divisional Judicial Magistrate, Saharsa in Misc. Case No. 87/98 (Trial No. 700 of 2000), whereby, in exercise of its power u/s. 125 of the Code of Criminal Procedure, the learned Magistrate had granted maintenance at the rate of Rs. 500 per month to opposite party No. 2. 2. Shorn of unnecessary details, the facts given rise to the present application, are that opposite party No. 2 Renu Kumari filed an application for grant of maintenance u/s. 125 of the Code of Criminal Procedure (for short the Code). On 1-8-1998 show-cause notice was issued to the petitioner and in pursuance thereof, he appeared on 31 -8-1998 and prayed for time to file the show cause. Said prayer of the petitioner was accepted and case was adjourned to 23-9-1998. On 23-13-1998, petitioner did not appear and the learned Magistrate directed the case to be listed for ex parte hearing on 16-10-1998. On the said date also, petitioner did not appear and the case was adjourned to 28-11-1998. On 28-11-1998, petitioner appeared and the case was adjourned to 22-12-1998 for ex parte hearing and for evidence. That the matter was taken up on the said date, petitioner filed an application for adjournment which was granted and the case was adjourned to 13-1-1998. On the said date, petitioner filed an application for recall of the ex parte order. Ultimately, no show cause was filed and the learned Magistrate, after recording the evidence led on behalf of the opposite party No. 8, passed the impugned order. 3. It is contended by the learned Counsel for the petitioner that apposite party No. 2 was a minor girl in the year 1998, when the application was filed, and the applicant being the minor, same is not maintainable and the learned Magistrate erred in passing the impugned order. This order of maintenance has been passed in favour of a minor girl and on the ground of her minority. I am not inclined to interfere with the impugned order. 4. Learned Counsel for the petitioner then contends that the mother of opposite party No. 2 had earlier filed an application for her maintenance, and for maintenance of opposite party No. 2 and that having ended in a compromise, fresh application by opposite party No. 2, is not maintainable. 5. I am not inclined to interfere with the impugned order. 4. Learned Counsel for the petitioner then contends that the mother of opposite party No. 2 had earlier filed an application for her maintenance, and for maintenance of opposite party No. 2 and that having ended in a compromise, fresh application by opposite party No. 2, is not maintainable. 5. Learned Counsel, however, appearing on behalf of opposite party No. 2 submits that the second application for maintenance is not barred and in this connection, my attention has been drawn to a decision of Allahabad High Court in the case of Nathun Ram V/s. Smt. Ramari 1966 Allahabad 129. 6. True it is that the mother of opposite party No. 2 earlier filed an application for grant of maintenance before the Sub-Divisional Judicial Magistrate, Saharsa which was registered as Misc. Case No. 2/96 and in the said application, only the mother of opposite party No. 2 has been shown as petitioner, although in the body of the application, reference has been made that she is unable to maintain her minor daughter. Thereafter, an application was filed by her stating therein that she is being maintained properly by the petition and she does not want to pursue the application. In the aforesaid premises, the mother of opposite party No. 2, prayed for withdrawal of the application and by order dated 28-6-1998 such a prayer was granted. In this order, there is no whisper as regard to the maintenance of opposite party No. 2. As stated earlier, the application was filed by the mother of opposite party No. 2 which was later on withdrawn and in that view of the matter, I am of the opinion that the same shall not prevent opposite party No. 2 to bring an action for maintenance u/s. 125 of the Code. 7. Learned Counsel for the petitioner then submits that there is nothing on the record to show that opposite party No. 2 is unable to maintain herself, I am not, at all, impressed by this submission of the learned Counsel. Opposite party No. 2 is a minor and on consideration of the material placed on record, the learned Magistrate has found that she is unable to maintain herself. I do not find any error in the same. 8. Opposite party No. 2 is a minor and on consideration of the material placed on record, the learned Magistrate has found that she is unable to maintain herself. I do not find any error in the same. 8. Learned Counsel for the petitioner lastly submits that the petitioner was not given an opportunity to file the show cause and contest the case. 9. Learned Counsel for opposite party No. 2, however, submits that the petitioner was given sufficient opportunity and in case, he failed to avail the same, he is to blame himself for that. 10. Having apprecisted the rival submissions, I find substance in the submission of the learned Counsel for opposite party No. 2. As stated earlier, in pursuance of the notice, the petitioner appeared before the learned Magistrate from time to time but did not file the show cause. No body else excepting the petitioner, is responsible for the same. 11. In the result, I do not any merit in this application and it is dismissed accordingly.