SAMIR MANDAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under sections 397(1) and 401 of the Code of Criminal Procedure, 1973 (in short 'the Code '). It is directed against the order dated 20th March, 1998 passed by Shri D.K. Sinha, Sub -Divisional Judicial Magistrate, Jamtara in Cr. Misc. No.17 of 1930 by which an application filed under section 125 of the Code by opposite party no.2, the wife, has been allowed and an order has been passed for paying maintenance to her at the rate of Rs.400/ - per month by the present petitioner

(2.) THE case of opposite party no.2 was that she was married to the petitioner according to customary religious rites. At the time of her marriage her lather had given her ornaments etc. On her marriage she went to her Sasural and started living with the present petitioner as his wife. Subsequently the petitioner and the members of his family began to demand a sum of Rs. 20,000/ - in cash as dowry and put pressure on opposite party no.2 for its payment. Since, however, the father of opposite party no.2 happened to be too poor this demand could not be fulfilled, which resulted in assault on opposite party no.2 and she was denied food and clothing. She was driven out of her house and was forced to live with her father. In her petition filed under section 125 of the Code opposite party no.2 had contended that the petitioner is a man of means and subsequently he has also married one Sachirani Mandal.

(3.) IT has further been contended that earlier the claim for maintenance of opposite party no.2 was dismissed on 24.2.1995 by the Judicial Magistrate and the same was confirmed on appeal by the Additional Sessions Judge. Both these orders were, however, were quashed by this Hon 'ble Court in Cr.W.J.C. No.645 of 1997 by which the trial court was again asked to pronounce the judgment on the basis of the materials available on record. This is how the impugned judgment has been passed. The judgment was passed on 24.7.1990 in the case filed under section 494 of the Indian Penal Code. This complaint case was dismissed. In this judgment it was held that opposite party no.2 is not the married wife of the petitioner. Since no appeal has been filed against this judgment the finding of the court became final and the claim of opposite party no.2 for her maintenance under section 125 of the Code is barred by the principle of estoppel. The opposite party no.2 was living in adultery even after her alleged marriage to the present petitioner and as such she is not entitled to any maintenance. The evidence of her witnesses suffered from material contradiction and, therefore, no reliance on the same can be placed. The findings of the learned court below are perverse and contrary to the evidence adduced by A.Ws. or O.P.Ws. From the evidence it would appear that at the time of the alleged marriage with the petitioner, opposite party no.2 had a pregnancy of four months. This will show that she was leading a life of adultery. On these grounds; amongst others; it has been contended that the opposite party no.2 is not entitled to any maintenance and, therefore, the impugned judgment of the learned court below be quashed.