IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.30 of 2008
ASWANI KUMAR SINHA SON OF LATE RAMASISH PRASAD, R/O-
VILLAGE SIHMA, P.O.- SIHMACHAK, P.S.- KHODAWANDPUR,
DISTRICT- BEGUSARAI, AT PRESENT WORKING TO THE POST OF
ASSISTANT IN THE OFFICE OF CIRCLE OFFICER, ROSERA, DISTRICT
SAMASTIPUR.
Versus
1. THE STATE OF BIHAR
2. SAVITRI DEVI, WIFE OF ASANI KUMAR SINHA
3. PRINCE KUMAR MINOR SON OF ASWANI KUMAR SINHA,
BOTH ARE RESIDENT OF VILLAGE SIHMACHAK, P.S.-
KHODAWANDPUR, DISTRICT- BEGUSARAI AT PRESENT
RESIDING AT VILLAGE PANTAPUR, P.S.- KALYANPUR, DISTRICT-
SAMASTIPUR.
For the petitioner : Mr. Ashok Kumar Mishra, Advocate.
For the State : Mr. Jharkhandi Upadhyay, APP
-----------
7 23.09.2010 Heard learned counsel for the petitioner. No body has
appeared on behalf of O.P. nos. 2 and 3. State is represented by
learned A.P.P.
Learned counsel for the petitioner challenges the
order impugned dated 5th February, 2007 passed in Maintenance
Case no. 16/2003 (Savitri Devi & Anr. Versus Ashwini Kumar
Sinha) whereby learned Principal Judge, Family Court on a
consideration of the materials on record including oral and
documentary evidence came to the conclusion that the applicants
(wife and son of the petitioner-husband) deserve payment of
maintenance in the sum of Rs. 2500/- per month to the wife and
Rs. 1,000/- per month to his son. A lump sum of Rs. 3,000/- as
litigation cost was also directed to be paid.
Learned counsel for the petitioner submits that in the
application filed under Section 125 of the Code of Criminal
Procedure (for short the Code), no averments/allegation has
2
been made that the wife was tortured and neglected by the
petitioner-husband. Learned trial court dealt with the aforesaid
aspect of the matter in paragraph 6 of the order which reads as
under:
” I have gone through the statements of the applicant
and her other witnesses and have also perused the
maintenance application. In the maintenance
application, it is not stated that the O.P. has willfully
neglected to maintain the applicant and her minor son
and there is also no reason assigned so as to give her a
reasonable ground for living separately from the O.P.
However, the applicant Sabitri Devi A.W. 1 in her
statement has stated that she was married to the O.P.
on 12th day of June, 1995 according to the Hindu rites
and customs. She has a son through the O.P.. In the
marriage, there was no demand of dowry as the O.P.
was unemployed. After three or four months of the
marriage, he got a Government job on compassionate
ground. Thereafter, he demanded rupees two lacs and a
Hero Honda Motorcycle and began to torture her
physically and mentally and lastly, turned her out of the
house. The L.P. has willfully neglected to maintain her
and her son. He has also performed his second
marriage to satisfy his greed of dowry. She is unable to
support herself and her son. The O.P. is presently
posted as Nazir in Singhiya block, Samastipur. Thus,
her evidence contains all the ingredients required for the
claim of maintenance. She is little educated and rustic
lady. This proceeding is under the code of criminal
procedure for maintenance where the rules of pleadings
cannot be strictly applied. Therefore, in my opinion, the
omissions occurred in the maintenance application as
stated earlier, is not fatal to the claim of maintenance.
Ram Vati Devi, A.W. 2 in her evidence has stated
nothing about the torture of the applicant, but she has
also supported that the O.P. has contracted his second
marriage. Since this witness, as it appears from her
address, does not come from the parental or
matrimonial village of the applicant, therefore, she
cannot be expected to have personal knowledge about
the torture of the applicant. Hence, the evidence of the
applicant in this regard cannot be thrown out or
outrightly disbelieved. Moreover, both A.W. 1 and A.W.
2 have stated that the O.P. has solemnised his second
marriage. A.W. 2 appears to have been cross-examined
by the O.P., but she has not been given suggestion that
the O.P. has not contracted his second marriage. ”
3This Court finds from the order impugned that the
petitioner willfully defaulted in appearing before the Court. No
evidence was adduced on his behalf. He was, however, given
adequate opportunity to cross-examine the witnesses adduced
on behalf of applicant-wife. Learned trial Court on a consideration
of the entire materials on record found as under in paragraph 7:
“From the above discussions, I come to
a clear conclusion and hold that the applicant
Sabitri Devi and her minor son Prince Kumar are
entitled to get maintenance from the O.P. Further,
as regards the quantum of the maintenance, there
is no dispute that the O.P. is an employee in
Singhiya block, Samastipur. The record shows that
the O.P. has not denied in his any application or
during the reconciliation proceeding that he holds
the post of the Nazir. So, I think Rs. 2,500/-
(Rupees two thousand five hundred) per month to
the applicant Sabitri Devi and rupees 1,000/- (one
thousand) per month to the minor son Prince
Kumar for their maintenance and a lump sum
amount of Rs. 3,000/- (Three thousand) as litigation
cost to Sabitri Devi would be just and proper to
serve the ends of justice. “
In my view, the consideration of the matter by learned
court below does not suffer from any illegality and/or impropriety
meriting interference.
There is no merit in this application. It is accordingly
dismissed.
( Kishore K. Mandal, J. )
pkj