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2008 DIGILAW 464 (PAT)

Amarnath Sahani v. State Of Bihar

2008-03-05

ABHIJIT SINHA

body2008
Judgment 1. The petitioner who is opposite party in a proceeding under Section 125 Cr.P.C. being Maintenance Case No. 95 of 2000 is aggrieved by order dated 12.4.2005 passed by the learned Presiding Judge, Fast Track Court No.-I, East Champaran at Motihari, in Criminal Revision No. 377 of 2004, whereby he has affirmed and modified the order dated 4.9.2004 passed by Sri Jaiganesh Singh, Judicial Magistrate, First Class, Motihari, in the aforesaid Maintenance Case whereunder the petitioner has been directed to pay a sum of Rs. 2,500/- per month as maintenance to his wife and daughter from the date of the institution of the case and has prayed for quashing of the aforesaid two orders. The modification by the revisional court was to the effect that the amount of maintenance was payable from the date of the order and not from the date of the institution of the case. 2. It appears that the instant application against the opposite party No. 2, i.e., the applicant-wife stood dismissed for non-compliance of the order dated 19.12.2006 issuing notice to her and the case has proceeded only against the State. 3. The wife Siya Devi filed the application under Section 125 Cr.P.C. on 12.12.2000 praying therein that the opposite party-husband be directed to pay Rs. 1,000/- per month as maintenance to her and her daughter. 4. The grievance of the petitioner herein is that when the claim of the applicant was for Rs. 1,000/- per month jointly for herself and her daughter, the learned Magistrate had erred in directing for the payment of Rs. 1,500/- for the wife and Rs. 1,000/- for the daughter and this by itself would be an abuse of the process of the court. In this connection, the learned counsel for the petitioner sought to assail the conduct of the learned Magistrate who had examined only four witnesses including the complainant and her father to decide the matter. It was sought to be submitted that all the four witnesses examined gave different and contradictory statements regarding the lands and income of the petitioner and the learned Magistrate relying solely on the oral testimony of the witnesses and without verifying the truth of the same came to the conclusion that the petitioner had an income of Rs. 20,000/- from agriculture and Rs. 50,000/- from fishing rights. 20,000/- from agriculture and Rs. 50,000/- from fishing rights. Referring to the deposition of C.W. Shambhu Shahni, he pointed out that in course of examination this witness has stated that the petitioner has 3 and 1/2 bighas of land whereas P.W. 3, Basudeo Shahni, the father of the applicant has stated that the petitioner has 2 and 1/2 bighas of land and the applicant Siya Devi has stated that the petitioner has 4 bighas of land and these have not been supported by documentary evidence which apparently creates suspicion in the minds. 5. The learned counsel with reference to the witnesses of the applicant further sought to submit that they had stated that Siya Devi had illicit relation with one Ram Ayodhya Sahni who is her co-villager and the daughter, Murat Kumari, was the outcome of the illicit relationship with Ram Ayodhya Sahni. The submission of the learned counsel for the petitioner was that in the face of such diverse and conflicting testimony of the witnesses and the fact of the applicant- wife leading an adulterous life she was not entitled to any maintenance and it was difficult to understand how the learned Magistrate had accepted as trustworthy the evidence of the witnesses of the applicant. In this connection, he has referred to the testimony of witness, Santu Sahni, who has specifically stated that Siya Devi, was leading an adulterous life and Murat Kumari was the outcome of such licentious relationship. 6. The learned counsel for the petitioner further sought to assail the order of the revisional court inasmuch as it had rejected the evidence produced by the petitioner to the effect that Siya Devi had got married with Ram Ayodhya at Someshwarnath Temple at Areraj on the ground that it had not been produced before the Magistrate. 7. It appears from perusal of the order of the revisional court that although the petitioner herein had filed a petition before the learned Magistrate regarding the marriage of Siya Devi with Ram Ayodhya but the said petition notwithstanding several indulgence by the court was never moved and the receipt of the marriage was produced for the first time before the revisional court alongwith copy of punchnama which the revisional court has rightly rejected. It also appears that three witnesses were examined on behalf of the petitioner including his father and in these circumstances, it cannot be said that no opportunity had been given by the learned Magistrate to the petitioner to prove his case and as a matter of fact it was due to his negligence and delaying tactics that his evidence had been closed. 8. If the petitioner herein had not been able to prove that Siya Devi was not his legally wedded wife or that she was living separate from him or had refused to live with him before the learned Magistrate when opportunity was available to him, he cannot now come forward and state that the learned Magistrate and the revisional court had erred in law and fact. 9. There is another aspect of the matter. The instant case stands dismissed against the wife-O.P. No. 2 by the negligence on the part of the petitioner herein. In that view of the matter, the order of the magisterial court as also the revisional court has reached finality, so far as the wife-O.P. No. 2 is concerned, and to upset the order now cannot be thought of. 10. In the aforesaid circumstances, I find no merit in this application which is accordingly dismissed.