PRADEEP KUMAR, J. - (1.) THIS revision is directed against the order dated 10.7.2008 passed by Principal Judge, Family Court, Jamshedpur in I.A. No. 09/06, by which order the learned Principal Judge allowing an application for interim maintenance filed by the petitioner's wife opposite party No. 2 and his minor daughter opposite party No. 3. and directed the petitioner to pay interim maintenance of Rs. 4000/ - each to opposite party Nos. 2 and 3 (total Rs. 8000) per month to the opposite party No. 2 starting from 25.9.2006 eveiy month as interim maintenance till disposal of the Misc. Case No. 57 of 2006.
(2.) IT is submitted by the learned Counsel for the petitioner that earlier the opposite party Nos. 2 and 3 had filed an Interlocutory Petition No. 09/06 whereby Rs. 1,000/ -was allowed to the opposite party No. 3. But the claim for interim maintenance of opposite party No. 2 was refused on the ground that she was living hi adultery. Thereafter the opposite party Nos. 2 & 3 filed Cr. Rev. No. 986 of 2007 before this Court on 21.7.2007 by which order the Hon'ble High Court set aside the order passed in I. A. No. 9/06 and directed the court below to pass afresh order and accordingly after hearing both the parties the learned Principal Magistrate has passed the impugned order, which is bad in law and fit to be set aside. It is submitted by the learned Counsel for the petitioner that opposite party No. 2 had filed a Matrimonial Suit No. 71 of 2006 under Section 13(1)(a) of Hindu Marriage Act for a decree of divorce on 18.4.2006. Since the petitioner came to learn that his wife is living in adultery with one Ritesh Kumar. The petitioner also filed an application before S.P. Bokaro against Ritesh Kumar on the basis of which a case was registered against him. The petitioner has filed a case under Sections 497/498 of the Indian Penal Code, which was registered as C.P. Case No. 62/2007 by which judgment dated 13.1.2009 the learned Judicial Magistrate found the accused, Ritesh Kumar guilty under Section 497 of the Indian Penal Code and sentenced him to simple imprisonment for a period of 2 years. Now it has been proved by the aforesaid judgment passed in C.P. Case that the wife is living in adultery and as per Section 125(4) no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent, and as such the impugned order is bad in law and fit to be set aside.
(3.) ON the other hand, learned Counsel for the opposite party Nos. 2 and 3 has submitted that the learned trial court by its impugned order relying on the finding of the Hon'ble High Court in Cr. Rev. No. 986/07 that there is no legal evidence that Rupa Kumari is living in adultery and also as per the direction of the Hon'ble Court that since the daughter of opposite party No. 2 is suffering from systic imbroses and that her treatment is available only at C.M.C.H., Vellore incurring heavy cost and considering that the Hon'ble Court (sic) only Rs. 1000. to opposite party No. 3, Anustha is insufficient. Hence considering the aforesaid finding the learned trial court allowed an interim maintenance of Rs. 8,000 each to 'opposite party No. 2 and opposite party No. 3. He has further submitted that the trial court has also found that the petitioner, who is working as Manager in Bokaro Steel Plant and getting handsome salary of Rs. 25,000/ - per month along with free quarter and car with driver, is only paying a sum of Rs. 8,000/ - to the wife and child. He has further submitted that as far as the finding given by Judicial Magistrate against accused, Ritesh Kumar is concerned, there is no finding that Ritesh Kumar is living in adultery with opposite party No. 2. The finding is based only on guess and surmises. Moreover, the opposite party No. 2, Rupa Kumari was not a party to aforesaid complaint case No. 62/07, nor she was examined as a court witness in that case. In that view of the matter, the finding arrived at against accused Ritesh Kumar cannot be used for blocking the interim maintenance to the opposite party Nos. 2 and 3. ;