HARI SHANKAR PRASAD, J. - (1.) THIS application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dated 8.4.2002 passed in Criminal Revision No. 1 of 2000 whereby and where under the learned 5th Additional District Judge, Hazaribagh set aside the order 1.12.1999 passed in Maintenance Case No. 33 of 1991 by SDJM. Koderma.
(2.) FACTS giving rise to the filing of this instant application are that Champa Devi who is petitioner of this case, had filed a Maintenance Case. No. 33 of 1991 stating therein that she is legally wedded wife of O.P. No. 2 and marriage was solemnized in the year 1969 according to the Hindu Rites and Customs and ten months after solemnisation of marriage, Rokhsaddi was done and after Rokhsaddi this petitioner went with her husband to her sasural and living with O.P. No. 2 as husband and wife. After marriage O.P. No. 2 maintains her properly for some years, but thereafter he made a demand of Rs. 5,000.00 as dowry which father of the petitioner was due to poverty unable to meet. In the year 1983 O.P. No. 2, and mother -in -law of this petitioner always abused her and did not provide foot, etc. The petitioner lodged a complaint about this with her father, then her father came to her sasural and persuaded them, but still the persuasion did not have any effect on them and thereafter they started assaulting the petitioner. In the third month of 1983 she became pregnant and she was not maintaining good health and on 1.6.1983 of O.P. No. 2 assaulted her and drove her out, compelled by the circumstances petitioner came to her naihar and her father got her treated properly. In the month of Aghan 1983 petitioner gave birth to a male child. She named him Abhimanyu Pandey and this Abhimanyu Pandey is residing properly. The petitioner again went with her father to her sasural, but O.P. No. 2, and his mother did not allow her to enter the house and drove her out, as a result of which she is living in her naihar. O.P. No. 2 is rich agriculturist. In this maintenance case, a notice was issued and the O.P. No. 2 appeared as O.P. and the petitioner led evidenced and thereafter learned Judicial Magistrate passed an order and allowed Rs. 400.00 to the petitioner and Rs. 400.00 to her son Abhimanyu Pandey but a sum of Rs. 400.00 to her son was allowed till he attains majority. Being aggrieved by the order passed in Maintenance Case No. 33 of 1991 O.P. No. 2 preferred a criminal revision being Criminal Revision No. 01 of 2000 and the learned Revisional Court after hearing the parties allowed the revision and set aside the order dated 1.12.1999. Learned counsel appearing for the petitioner submitted that the order dated 1.12.1999 passed by learned SDJM, Koderma was fully justified and the learned Revisional Court had no jurisdiction to interfere with the finding and set aside the impugned order because the Revisional Court committed irregularity and illegality and entertained this application because O.P. No. 2 has alleged that petitioner is living an adulterous life but no proof that she has been living an adulterous life has been brought on record by the O.P. No. 2. It was further pointed out that allegation cannot take a form of proof and this allegation in which no proof has been brought on record to show that petitioner was living an adulterous life, cannot be believed. It was also pointed out that witnesses brought on behalf of O.P. No. 2 have only stated that they have only heard that petitioner is a lady of bad character but what is the basis of their coming to such a conclusion has not been brought on record and no proof that she has committed this illegal work or she has kept illegal relationship with so and so and she is seen in illicit relationship with anybody, has been brought but merely on surmises and conjecture, learned revisional Court has come to a finding that she is leading an adulterous life. O:P. No. 2 has not brought reliable material on record to show that petitioner was leading an adulterous life and the learned SDJM has rightly passed an order for maintenance to the petitioner and her son. It was further pointed out that only vague allegation has been levelled against her because O.P. No. 2, has performed marriage with one Asha Devi (Annexure -2), it is also submitted that O.P. No. 2, is a Government employee under Executive Engineer, NHW, Sub - Division, Hazaribagh posted as Chaukidar as Jhumri Tilaiya and getting salary about Rs. 6,000.00 per month. In this connection, learned counsel placed reliance upon Vijay Shankar Prasad V/s. Smt. Manika Rai, 1990 East Cr C 698 (Pat) in which it has been held that if there is allegation of adultery, that has to be proved by clear evidence and in the instant case, there is no clear evidence that she has been living in adultery. Reliance was further placed upon Mohd. Manzar V/s. Nazmakhatoon, 1987 East Cr C 257 : 1987 PLJR 151 in which it has been held that claim of maintenance cannot be denied by wild allegation relating to character of the claimant wife in absence of proof. It was pointed out that in the instant case also, only wild allegations have been levelled and there is no proof brought on record that she is living in adultery. Learned counsel referred to the evidence of witnesses produced on behalf of O.P. No. 2, DW 1, is a retired teacher and he is the General Secretary of Sarotari Brahaman Samaj and he claims to have settled the matter in between petitioner and O.P, No. 2, several times and he claims that he found character of petitioner is very bad and she never lived in the house of O.P. No. 2 for a long time. He admits that petitioner was married according to the Hindu Customs with O.P. No. 2. He does not know that a son was born to the petitioner in 1983 though he was deposing in the year 1990 and what nature of evidence is of this DW 1, can only be imagined. DW 2, has simply termed character of the petitioner as not good as she has relationship with Madhusudan Pandey. He does not know where sasural of the petitioner lies. On the other hand, he admits that he knows wife of the O.P. No. 2 who is living with him. He is such witness who heard about the name of Champa Devi one or two months before in, Kutchery, DW 3 is another witness produced on behalf of O.P. No. 2. He is minister. He claims himself to be a Central Minister of Samaj but that Samaj has not been registered DW 4 is O.P. No. 2 himself. On the other hand, learned counsel appearing for the O.P. No. 2, submitted that there is ample proof that she is leading an adulterous life and that she has got illicit relationship with Madhusudan Pandey and also with her father and child is born not out wedlock but by Madhusudan Pandey. In this connection, he referred, to documents marked as Ext. -A to D1, that petitioner Champa Devi was not living with her husband as wife, rather she was living in adultery and have illicit relation with Madhusudan Pandey.
(3.) ON perusal of material on record, it is clear that petitioner is a legally married wife of O.P. No. 2 and that the only allegation levelled against her is that she leads an adulterous life, but that has not been proved by the O.P. No. 2, and there is no cogent evidence on this point and there fore, she is entitled a maintenance along with her son as per order dated 1.12.1999 passed in Maintenance Case No. 33 of 1991. In the result, this application is allowed and the order dated 8.4.2002 passed in Criminal Revision No. 1 of 2000, is hereby set aside and the order passed in Maintenance Case No. 33 of 1991 is hereby restored.;