- (1.) HEARD the parties. The petitioner has prayed for quashing the order dated 8.12.2003, passed by learned 7th Additional Sessions Judge, F.T.C. No. IV, Godda in Cr. Rev. No. 33 of 2003 confirming the order dated 31.5.2003, passed by Judicial Magistrate, 1st Class in Cr. Misc. No. 6 of 1999 filed under Section 125 of the Code of Criminal Procedure by opposite party No.2.
(2.) LEARNED counsel for the petitioner (husband) submitted that Courts below have not appreciated the evidences correctly and, therefore, they have recorded incorrect findings. He submitted that opposite party No. 2 Smt. Chameli Devi (wife) remarried with one Raju Sah, therefore, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure, he further submitted that she filed a criminal case against the petitioner under Section 498 -A of the Indian Penal Code which ultimately ended in acquittal with finding that petitioner never tortured her. He heavily relied on the evidence of OPW 1, Naresh Sah, own brother of Smt. Chameli Devi, who has stated that she was married with the petitioner 25 years ago and after three -four year she remarried Raju Sah. Learned counsel for the opposite party No. 2 submitted that onus was on the petitioner, first to prove that there was divorce between the petitioner and Smt. Chameli Devi, which has not been proved. He further submitted that petitioner has also failed to prove re -marriage. Even divorce/marriage by custom has also not been proved.
(3.) MR . K.P. Deo, learned counsel for the opposite party No. 2 asserted that there was no exhibit regarding any panchayati showing dissolution of marriage and it was wrongly stated on behalf of the petitioner before the Court below that there was an exhibit showing that marriage was dissolved by panchayati Regarding evidence of OPW 1, Naresh Sah, he submitted that the said witness is of no help to the petitioner. He said that he heard that her sister re -married one Raju Sah. He relied on a decision of Apex Court in Vimala (K) V/s. Veeraswamy (K), (1991) 2 SCC 375, in order to show that heavy burden was on the petitioner to prove the aforesaid fact strictly when he failed to discharge. He lastly submitted that this case under Section 125 of the Code of Criminal Procedure was filed in the year 1999 but till date petitioner has been lingering it and did not pay anything to the opposite party No. 2.;