SHYAMLAL PATHAK Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application u/s 482 of the Code of Criminal Procedure (in short as Code) has been filed for quashing the order dated 12.12.97 passed by Shri Mahabir Kumar, Judicial Magistrate, 1st Class, Gaya in Misc. case No. 20/1987 corresponding to Jr. No. 575/97 whereby and whereunder he refused to recall the exparte order dated 21.7.97 by which the petitioner was directed to pay maintenance to O.P. no. 2 at the rate of Rs. 400.00 per month along with arrears since 5.5.1987.

(2.) IT appears that O.P. No. 2, Smt. Pushpa Kumari, filed an application u/s 125 of the Code in the court of CJM, Gaya on 5.5.87 and the said application was numbered as Misc. case No. 20/87 in which O.P. No. 2 claimed herself to be legally wedded wife of the petitioner and claimed maintenance from him. Learned Magistrate initiated the proceeding and issued notice against petitioner who appeared and filed show cause. In course of enquiry two witnesses were examined on behalf of the applicant and cross examined. After examination and cross examination of two witnesses petitioner being the husband made application before the court below on 21.3.90 and prayed that since he has been acquitted in complaint case No. 127 of 1986 in which O.P. No. 2 has been held out not to be wife of petitioner and hence present proceeding u/s 125 of the Code be dropped. The matter was heard by the learned Magistrate who by order dated 2.4.91 passed in Misc. case No. 20/87 rejected the prayer.

(3.) IT has been contended on behalf of the petitioner that prior to the filing of the application u/s 125 of the Code the complainant had filed a complaint case in the court of CJM, Gaya for offences punishable u/ss 323, 342, 380 of the IPC and 4 of the Dowry Prohibition Act claiming herself to be legally wedded wife of the petitioner. He contended that after trial the learned trial court by judgment dated 24.4.89 recorded finding that complainant could not establish her marriage with petitioner. He contended that when the marriage of the complainant with petitioner has not been established so, the question of grant of maintenance also does not arise. In support of his contention learned Counsel placed reliance on a decision of the Supreme Court given in the case of Samir Mandal vrs The State of Bihar & and reported in 2001 (X) SCC page 50. He also contended that against the judgement dated 24.4.39 complainant had preferred SLA No. 77/89 before this Court which was dismissed on 19.1. 90.