JUDGMENT : SUBHASH CHAND, J. 1. The instant criminal revision is on behalf of petitioner-husband against the judgment dated 10.11.2022 passed by the learned Principal Judge, Family Court, Dumka in Original Maintenance Case No. 83 of 2019 under section 125 of Code of Criminal Procedure (herein referred to as ‘Cr.P.C.’) whereunder the learned Principal Judge, Family Court has directed the petitioner to pay the amount of Rs. 10,000/- per month to opposite party no. 2-wife from the date of application i.e. 08.11.2019. Further the petitioner was also directed to pay the arrears of the maintenance amount in 15 equal installments failing which the petitioner’s wife would be entitled to realize the same in due course of law. 2. The brief facts leading to this criminal revision are that on behalf of Ms. Sabita Jha, an application was given against her husband-Pritam Kumar Jha under section 125 of Cr. PC before the Court of the learned Principal Judge, Family Court at Dumka with these averments that the petitioner was married with the opposite party on 09.07.1999 at village Mina Bazar Colony, Bounsi, District Banka (Bihar) at the house of her maternal uncle according to Hindu rites and rituals. In the year 2002, after duragaman of petitioner she had been brought by her husband to her matrimonial house situated in Electric Colony, Dumka and out of wedlock of the petitioner and opposite party, a child was born. After few months of the arrival at the matrimonial house, the petitioner alongwith his family members began to create pressure to bring Rs. 1,50,000/- to establish his business. Since the parents of the opposite party/wife were no more and in her parent house there were three brothers and as such she was unable to give the same amount as demanded by her husband. The petitioner-husband and his family members all began to assault her and on account of assaulting her six months unborn child was also collapsed. This matter was apprised to the Superintendent of Police, Dumka. On account of intervention of the well-wishers of both and on the assurance of the husband that he will not repeat his ill behavior towards the wife she was taken on bidagiry to her matrimonial house. The father-in-law of OP No. 2 retired and all the family members left the house of Electric Colony and went to their permanent matrimonial house village Bhagwanpur, PS Banka, District Banka (Bihar). The father-in-law of OP No. 2 retired and all the family members left the house of Electric Colony and went to their permanent matrimonial house village Bhagwanpur, PS Banka, District Banka (Bihar). The husband of the petitioner and his family members continued to harass her. The wife used to make the complaint of the same to her brothers. The petitioner received a notice of the Divorce Petition No. 59 of 2006 issued from the court of learned Principal Judge, Family Court, Dumka. The learned Family Court at Dumka had directed the local NGO Manvi to inquire into the matter whether the OP No. 2 was still residing in the matrimonial house at Bhagwanpur, Banka, Bihar or not. On 08.09.2007 all the family members had thrown a boiling tea upon the opposite party whereby she got burn injuries and she was kicked out from the matrimonial house. She communicated in regard to this occurrence to her brother. Her brother came to her in laws house and took her with him. He also lodged the complaint which was registered at Banka PS Case No. 284 of 2007 on 09.09.2007. The wife/opposite party has been residing to her parental house since 09.09.2007. The Divorce Petition No. 59 of 2006 was also contested by the wife/opposite party and after hearing both the parties the learned Principal Judge, Family Court dismissed the divorce petition vide judgment dated 28.02.2013. The husband preferred First Appeal No. 35 of 2013 against the judgment dated 28.02.2013 before the Hon’ble High court of Jharkhand at Ranchi. The same appeal was also dismissed. The wife and her brother also requested the husband for restitution of conjugal right but her husband refused for the same. The husband of the opposite party also married with a girl Bandana Mishra who is para teacher, with whom he is living his matrimonial life and the husband (petitioner herein) is not maintaining the wife (OP herein) since 09.09.2007. The opposite party is helpless lady and has no source of income from any corner and she is not able to maintain herself. The petitioner has deliberately neglected the opposite party to maintain her. The petitioner is doing private job in Dumka Automobile Centre and his getting salary Rs. 20,000/-. He is also carrying on coaching centre at Rasikpur in his house and is earning Rs. 15,000/- per month from the coaching centre. The petitioner has deliberately neglected the opposite party to maintain her. The petitioner is doing private job in Dumka Automobile Centre and his getting salary Rs. 20,000/-. He is also carrying on coaching centre at Rasikpur in his house and is earning Rs. 15,000/- per month from the coaching centre. The petitioner has also given on rent a house of Bhagwanpur, Banka and from the tenant he is also earning Rs. 16,000/- per month. He has also rented out his house at Dumka to a tenant and is getting Rs. 10,000/- per month. The respondent is also having the 10 acre dhani land in his village at Tetri, PS Naugachia, District Bhagalpur (Bihar). He is also getting Rs. 70,000/- per year from the agricultural land. In view of the above prayed the maintenance amount of Rs. 20,000/- per month from the petitioner. 3. On behalf of the OP/husband, the written statement was filed in which denying the averment as alleged by the wife i.e. petitioner stated that the wife resided with him for few days in the matrimonial house and never co-habited with him. The husband/O.P. or his family member never made any demand of money. The wife was never assaulted by him or his family member and six months child in womb was not collapsed, the same is white lie and as stated that the wife never co-habited with the husband. The question of the conception does not arise at all. The allegations of demand of Rs. 1,50,000/- is totally frivolous and concocted. The wife has lodged the FIR with the police station Banka where he had got bail from the court. The respondent is neither working in automobile nor at any other place as stated by the opposite party. Indeed the husband/respondent is a social worker and is attached with the NGO namely Samagrah Vikas Sansthan, Deoghar. He is having no coaching institute. There is no tenant of him. There is no agricultural property as alleged. In a case filed against the husband in Trial Case No. 177 of 2015 pending before the Court of Sessions Judge, Banka, the wife did not adduce any evidence and did not appear to adduce the evidence in support of the allegations made, so in the said case the husband was acquitted by the Additional District and Sessions Judge Court No. 1, Banka under section 232 of Cr.P.C. vide judgment dated 11.12.2017. The wife Sabita Jha has married with another person as such she is not entitled to any amount of maintenance. Accordingly prayed to dismiss the maintenance application. 4. On behalf of wife in support of her maintenance application examined PW-1 Sabita Jha, PW-2 Ranju Jha, PW-3 Praful Kumar Jha. 5. In documentary evidence on behalf of wife filed Exhibit-1 to 9 which reads as under: (i) Ext.1 Certified copy of application filed in the court of A.D.J. No. 1, Banka by the O/C Banka. (ii) Ext.2 Certified copy of Final form of Banka P.S. Case No. 284/2007. (iii) Ext.3 Certified copy of order sheets of S.T. No. 177/75 of the Court of District and Sessions Judge, Banka. (iv) Ext.4 Certified copy of F.I.R. of Banka P.S. Case No. 284 of 2007. (v) Ext.5 Certified copy of order dated 28.02.2013 of Matrimonial Suit No. 59/2006. (vi) Ext.6 Certified copy of judgment passed in Mat. Suit No. 59/2006 by the Principal Judge, Family Court, Dumka dated 28.02.2013. (vii) Ext.7 Certified copy of Ext.3 of Matrimonial Suit No. 59/2006. (viii) Ext.8 True copy of order dated 08.03.2017 passed in First Appeal No. 35/2013 of the Hon’ble Jharkhand High Court, Ranch. (ix) Ext.9 Certified copy of Ext. A of Matrimonial Suit No. 59/2006. 6. On behalf of the husband in oral evidence examined DW-1 Pritam Kr. Jha. 7. The learned Principal Judge, Family Court after hearing the rival submission of learned counsel for the parties and on the basis of evidence on record passed the impugned judgment dated 10.11.2022 whereby the maintenance application was allowed and the husband was directed to pay the maintenance amount of Rs. 10,000/- per month to the wife from the date of application i.e. 10.11.2019. 8. Aggrieved from the impugned judgment dated 10.11.2022 the respondent-husband filed this criminal revision who is petitioner herein Pritam Kumar Jha against his wife Sabita Jha on the grounds that the impugned judgment is not sustainable in the eye of law. The learned court below did not take into consideration this material fact that the wife has refused to live with the husband without any rhyme and reason. It was the wife herself who had disowned the husband at the instigation of her brother. She was never driven out from the matrimonial house. The husband is a part time worker in a oil company and is earning only Rs. 6,000-7,000/- as a commission. It was the wife herself who had disowned the husband at the instigation of her brother. She was never driven out from the matrimonial house. The husband is a part time worker in a oil company and is earning only Rs. 6,000-7,000/- as a commission. The learned court below did not take into consideration the plea raised by the husband and on the wrong appreciation of the evidence has passed the impugned judgment against the husband. Accordingly prayed to allow the criminal revision and to set aside the impugned judgment. 9. To decide the legality of the impugned judgment following point of determination is being framed - whether the impugned judgment passed by the learned court below is sustainable in law for not framing the following additional point of determination as to whether the wife is living in adultery? 10. Learned counsel for the petitioner has submitted that the petitioner husband has taken specific plea in his written statement in the maintenance case that the wife has married with another person and as such she has been residing in adultery. He has also taken this plea in his written statement that the wife denied the cohabitation with the petitioner without any reason. On this issue, no point of determination has been framed by the learned Principal Judge, Family Court. As such, the maintenance application cannot be allowed without giving finding on this very issue in view of the section 125 (4) of Cr.P.C. and contended to frame the very issue and to remand the case to the learned court below. 11. The learned counsel for the respondent-wife opposed the contentions made by learned counsel for the petitioner and contended that though this plea has been taken in the written statement by the husband but nowhere has been mentioned with whom the wife has been married in subsistence of her first marriage. So far as the allegations for wife of denying cohabitation with him without any reasonable cause are concerned, both these issues have already been decided by the learned family court in divorce petition in which it was dismissed by the Court. So far as the allegations for wife of denying cohabitation with him without any reasonable cause are concerned, both these issues have already been decided by the learned family court in divorce petition in which it was dismissed by the Court. The copy of the same is filed on record and the said judgment was also challenged before the Hon’ble High Court in First Appeal and the same was also dismissed by the Hon’ble High Court and confirmed the judgment and decree passed by the family court whereby the divorce petition was dismissed. 12. In reply the learned counsel for the petitioner has also further contended that though the learned family judge in divorce petition has decided the issue of cruelty and living in adultery against the petitioner husband; yet in the criminal case for the offence under section 498A in which, the wife had made the allegations by lodging FIR in regard to the cruelty by the husband and his family members. In the same case, the wife did neither appear nor adduced the evidence and the husband was acquitted in the same. As such, in view of above this is also evident that the wife has also neglected the husband without any reasonable cause and so she is not entitled to maintenance. 13. From the perusal of the impugned judgment passed by the learned court below it is found that the learned court below has framed following point of determination while disposing the maintenance application: (i) Has the opposite party been deserted and neglected by the petitioner willfully without any wrong on her part? (ii) Is the opposite party unable to maintain herself? (iii) Has the petitioner got sufficient means to provide maintenance to opposite party, if so, to what extent? 14. From the perusal of this impugned judgment it is evident that the learned court below has not framed this point of determination “whether the wife is living in adultery as she has remarried with another person as stated by the husband in Para-15 of his written statement.” 15. This point of determination is required to be framed by the learned court below in order to come to the conclusion in regard to entitlement of the wife for maintenance from the husband in view of section 125(4) of the Code of Criminal Procedure. This point of determination is required to be framed by the learned court below in order to come to the conclusion in regard to entitlement of the wife for maintenance from the husband in view of section 125(4) of the Code of Criminal Procedure. Herein section 125(4) of Cr.P.C. is reproduced herein-below: “125(4): No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” 16. From the bare perusal of this provision it is found that the wife is not entitled to get the maintenance (i) if she is living in adultery (ii) If husband and wife are residing separate with mutual consent and (iii) if the wife has refused to live with the husband without any sufficient reason. 17. So far as the submission made by the learned counsel for the respondent that the issue of adultery has already been decided by the learned family court in divorce petition by framing the issues and the same has been decided against the husband. In view of the above, the same issue is not required to be framed in this maintenance case. This plea raised by the learned counsel for the respondent is not found sustainable reason being though in Matrimonial (Divorce) Suit No. 59 of 2006 the learned Principal Judge, Family Court, Dumka while passing the judgment has also framed the issue no. 5 whether the respondent has been living in adultery after marriage with the petitioner and this issue no. 5 has been decided against the husband and in favour of the wife. Alongwith this issue, the learned Principal Judge, Family Court deciding the other issues also dismissed the divorce petition of the husband vide judgment dated 28.02.2013 and this judgment is Exhibit-6 on the lower court record. Against the same judgment, the first appeal was also filed by the husband and the same appeal was also dismissed by the Hon’ble High Court of Jharkhand at Ranchi in First Appeal No. 35 of 2013 vide judgment dated 08.03.2017 and the judgment and decree passed by the learned Family Court dated 28.02.2013 was affirmed. Against the same judgment, the first appeal was also filed by the husband and the same appeal was also dismissed by the Hon’ble High Court of Jharkhand at Ranchi in First Appeal No. 35 of 2013 vide judgment dated 08.03.2017 and the judgment and decree passed by the learned Family Court dated 28.02.2013 was affirmed. The judgment passed in First Appeal is Exhibit-8 on the lower court record. Nonetheless both the two judgments Exhibit-6 passed in Matrimonial (Divorce) Suit No. 59 of 2006 dated 18.02.2013 and Exhibit-8 passed in First Appeal No. 35 of 2013 dated 08.03.2017 may be the evidence in favour of the wife to rebut the allegation of adultery; yet it was incumbent upon the learned court below to frame the specific point of determination and to decide the same by taking into consideration the oral and documentary evidence adduced by both the parties. 18. This omission on part of the learned court below not framing the issue on this material point of determination in regard to living in adultery is a ground to remand this case to the learned court below. 19. Accordingly, the impugned judgment passed by the learned court below needs interference and this criminal revision deserved to be allowed. 20. The instant criminal revision is, hereby, allowed. The impugned judgment passed by the learned court below is set aside. 21. The learned court below is directed to frame the additional issue “whether the wife is living in adultery?” and after giving an opportunity to both the parties to adduce evidence on this very issue, decide the maintenance application afresh. 22. Let the record of learned court below be sent back alongwith copy of the judgment for necessary compliance.