IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Revision No.1437 of 2011

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Chandra Mohan Singh Thakur Prasad Singh, resident of village-

       Mirzanagar,P.S. Mahua, District- Vaishali

      …. Petitioner/s

Versus

1. The State of Bihar

2. Suman Kumari @ Laxmi Kumari W/O Chandra Mohan Singh Resident
of Village- Mirzanagar, P.S. Mahua, District- Vaishali, at present D/O
Brijnandan Singh of Village- Puranjar, P.S. Lalgaj, District- Vaishali

…. …. Opposite Party/s

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Appearance:
For the Petitioner/s : Mr. Dharmesh Kumar
For the Respondent/s : Mrs. Sangeeta Sharma, A.P.P.

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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN

        ORAL ORDER

03.  11-04-2014

Heard Mr. Dharmesh Kumar, learned counsel for the petitioner and learned counsel for the State.

Though served, the opposite party no. 2 has not registered her appearance.

This criminal revision is directed against the order dated 30.07.2011 passed by the Principal Judge, Vaishali at Hajipur in Maintenance Case No. 135 of 2007, whereby the court below has awarded a maintenance of Rs. 3,000/- payable by this petitioner to opposite party no. 2 under Section 125 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’).

Learned counsel for the petitioner while questioning the impugned order has referred to the provisions underlying Section 125(4) of the Code to submit that in case a wife refuses to live with her husband or the parties are living separately by mutual consent, on either of the ground, a wife is not entitled to maintenance. Learned counsel with reference to the deposition of the petitioner as opposite party witness no 3 has submitted that in paragraph-3 of the deposition, a specific offer was made by this petitioner for restoration of the matrimonial harmony and an affidavit to that effect was also filed in the court below as taken note of in the impugned order at paragraph-4 wherein the court below has referred to a petition dated 10.03.2010 filed by this petitioner containing such proposal and which was never replied by the opposite party no. 2 nor she has advanced any reasons for her refusal. Learned counsel further with reference to Exhibit-B and B-1 led by this petitioner in the court below has submitted that these two relevant piece of evidence though relatable to the complaint case filed by the opposite party no. 2 under Section 498A of the Indian Penal Code, nevertheless reflected that the parties had resolved to stay separately by mutual consent and were also agreeable to re-marriage by the other party and which relevant fact though being noticed by the court below has yet not been appreciated. Learned counsel with reference to the supplementary affidavit filed today has submitted that the opposite party no. 2 has solemnized marriage with one Ajay Kumar on 15.02.2013 and which is another ground for setting aside the impugned order.

I have heard learned counsel for the parties and I have perused the materials on record. Though Exhibit-1 is a compromise filed by the parties contesting before the Sub Divisional Judicial Magistrate in Complaint Case No. C 1768 of 2006 but nevertheless it contains the decision of the opposite party no. 2 to stay separately and her consent for re-marriage as well as for not staking claim over each other’s property. Certainly opposite party no. 2 cannot take a stand that the compromise containing the decision of the parties, was to be restricted to the complaint case rather a statement before a court of law in whatever proceedings if having a reflection on a collateral proceeding cannot be ignored. As stated by learned counsel for the petitioner, the petitioner had deposed in his evidence regarding restoration of matrimonial harmony. A specific petition was also filed to this effect on 10.03.2010 and which was never replied. That a sum of Rs. 1,22,000/- has been paid to the opposite party in the complaint case leading to the acquittal of the petitioner on the basis of the compromise, the attempt of the opposite party no. 2 to get advantage in the maintenance case by trying to distinguish the two proceedings, she yet cannot escape from her undertaking present in the compromise. Even before this Court, the opposite party no. 2 has not chosen to appear.

For the reasons discussed above, this Court finds the opposite party no. 2 not entitled to any maintenance under Section 125 of the Code of Criminal Procedure and the judgment and order of the court below is accordingly set aside. This criminal revision is allowed.

Let the lower court records be returned to the court concerned forthwith.

S.Sb/-                                                                                 (Jyoti Saran, J)