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2006 DIGILAW 1132 (PAT)

Hakim Sah v. State Of Bihar

2006-11-28

SHEEMA ALI KHAN

body2006
Judgment 1. Heard learned counsel for the petitioner. Learned counsel for the opposite party and the State. 2. Petitioner has challenged the order dated 24.8.2004 by which the Judicial Magistrate, 1st Class, Chapra, has rejected his application to stop payment of maintenance to his wife Buchi Devi on the ground that she was living in adultery. 3. The short facts in this case are that opposite party Buchi Devi has filed a case under sec. 498A and 379 of the Indian Penal Code read with sec. 3/4 of the Dowry Prohibition Act. She has also filed a case for maintenance in which she claimed maintenance for herself and her son stating that her husband used to assault her and after assaulting her had chased her away from her matrimonial home. The case of the petitioner is that the father of Buchi Devi had a lot of land and he had also a very good business of a Kirana Shop and after the death of her father she was living in the village. Petitioner has alleged that his wife Buchi Devi had entered into illicit relationship with her brother-in-law and, as such, she does not want to live with him. 4. After hearing both the parties and examining witnesses on behalf of both the parties, the court below has granted Rs. 300.00 as maintenance for Buchi Devi and Rs. 200.00 as maintenance for their son. 5. In this backdrop of the case of maintenance, the petitioner filed a petition for withdrawal of the maintenance granted to Buchi Devi as she was living in adultery. The opposite party filed a show cause which is annexure-3 to the petition in which it has been stated that she has two children born out of her wedlock and that the petitioner has illicit relationship with his sister-in-law. At para-6 of the said show cause it is said:- "That the court was also plqased to give a verbal order to the petitioner to go to house of her husband and began to live together as husband and wife. The petitioner went to his husband to the house of O.P and live there for three months. In the meantime, she was pregnant with her husband Hakim Sah and after nine months a daughter was born with Hakim Sah and then Hakim Sah neglected the order of the court to pay the interim relief." 6. The petitioner went to his husband to the house of O.P and live there for three months. In the meantime, she was pregnant with her husband Hakim Sah and after nine months a daughter was born with Hakim Sah and then Hakim Sah neglected the order of the court to pay the interim relief." 6. During the proceeding another document was filed which is Annexure-3. This is in the form of an affidavit. In the said affidvit she (O.P) has stated that ".......mujhe mere pati dwara paise bhi dia gaya our bad me bandh kar diye usi Kram me Nayalaya ke reconciliation ke prayas se me punah apne pati ke sath unke ghar gayee jahan mai teen maha tak khushi purbak apne pati ke saath rahi tatha usi samay garvabati ho gayee. 7. The meaning of adultery as given in Law of Lexicon is that voluntary sexual intercourse between a married person and a person of the opposite sex, who is not the others spouse, during the subsistence of the marriage. 8. One of the consequences of adultery may be the birth of a child as it is alleged in this case. 9. Now coming to the averment of the opposite party it appears that she has said that the verbal order was given by the court to go and live with her husband. On the other hand, in the affidavit it has been said that she went to live with her husband during reconciliation proceeding. Both the statements seem to contradict each other. The order of maintenance was passed on 22.2.2002 whereas she gave birth to a baby on 9.7.2002. Under the circumstances it would appear that this matter will have to be decided by the court below. The plea of adultery was taken at the initial stage while granting maintenance which was rejected by the court and maintenance was granted. Subsequently, the petitioner filed an application under sec. 125(3) of the Code of Criminal Procedure claiming that the opposite party had a child on 9.7.2002 and the baby has been born after the parties were living separately and as such, she is not entitled to maintenance. The question whether the child was conceived, when the parties were living together will depend on the facts pleaded by the parties. There are scientific means by which these facts can be determined. 10. The question whether the child was conceived, when the parties were living together will depend on the facts pleaded by the parties. There are scientific means by which these facts can be determined. 10. In this case, the birth of a child took place after the breakdown of the marriage, and after the order of maintenance was passed by the court below which gives rise to certain doubts. This can only be clarified by proper evidence or by some other scientific methods, such as D.N.A. test etc. 11. Sec.125 sub-clause 5 specifically says:- "On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order." 12. There is provision to cancel the maintenance but the reason of cancellation of maintenance should be specific. In this case the allegation is vague and the ground of adultery requires definite proof. Especially as it is alleged that the act of adultery led to the birth of the girl child on 9.7.2002. The birth of the baby has been questioned by the petitioner whereas the opposite party claims that she got pregnant while she was living with her husband, giving a different version to explain the birth of the child. She has tried to explain how the baby was born when she specifically stated that she has not been living with her husband since last 3 to 4 years in the earlier case. All these factors need to be re-examined by the court below and after examining these questions the court below will pass an appropriate order under sec. 125(3) of the Code of Criminal Procedure in accordance with law. 13. In the result, the application is remanded to the Judicial Magistrate, 1st Class, Chapra to reconsider the matter in accordance with the evidence and pleadings made by the parties and take whatever steps are required for determining the same.