Patna High Court
Avadh Kishore Sah @ Awadhesh Sah vs The State Of Bihar on 7 May, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.262 of 2020
Arising Out of PS. Case No.- Year-0 Thana- District- Bhagalpur
======================================================
Avadh Kishore Sah @ Awadhesh Sah Son Of Birendra Prasad Sah Resident
Of Village - Akoriya, P.O.- Kunouni, P.S. And District - Banka At Present R/O
Mohalla - New Colony, Ward No. 09, Naya Bazar, Saharsa, P.S. And Distt.-
Saharsa
... ... Petitioner/s
Versus
1. The State of Bihar
2. Soni Devi Wife of Sri Awadhesh Sah @ Avadh Kishore Sah D/o Dhirendra
Prasad Sah, Resident of Mohalla - Kalapganj, Mirjanhat, P.S.- Mojahidpur,
Distt.- Bhagalpur.
3. Gudiya Kumari Daughter of Awadhesh Sah @ Avadh Kishore Sah Minor
daughter, Under guardianship of her mother namely Soni Devi Resident of
Mohalla - Kalapganj, Mirjanhat, P.S.- Mojahidpur, Distt.- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner : Mr. Ranjan Kumar Jha, Advocate
Mr. Mirtunjay Kumar Mishra, Advocate
Mr. Rana Pratap Singh, Advocate
Ms. Nitu Kumari, Advocate
For the State : Mr. Upendra Kumar, APP
For the O.P. No. 2 & 3 : Mr. Sanjeev Kumar Mishra, Sr. Advocate
Ms. Manini Jaiswal, Advocate
Mr. Binay Krishna, Advocate
Mr. Manas Rajdeep, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
Date : 07-05-2025
The present revision petition has been preferred by the
petitioner against the impugned order dated 14.01.2020 passed
by learned Principal Judge, Family Court, Bhagalpur, whereby
learned Principal Judge has directed the petitioner to pay
Rs.3,000/- per month to his wife/O.P. No.2 and Rs.2,000/- per
month to his daughter/O.P. No.3 towards their maintenance.
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
2/32
The maintenance to the daughter is payable till her marriage as
per the impugned order and arrears of the maintenance amount
is directed to be paid in three installments within six months.
2. The factual background of the case is that on
26.07.2012
, O.P. Nos. 2 and 3 filed Misc. Case No. 96 of 2012
under Section 125 Cr.PC for their maintenance against the
petitioner and his parents. However, it appears that later on
parents were deleted from the array of the Opposite Parties
before the Court below.
Case of Soni Devi as per the Maintenance Petition
3. As per the allegation made in the maintenance
petition, the marriage between the petitioner and Soni Devi was
solemnized on 18.03.2010 as per Hindu Rites and Customs and
out of the wedlock, O.P. No.3 was born. As per further
allegation, on account of non-fulfillment of demand of
additional dowry, O.P. No.2/wife of the petitioner was subjected
to physical assault, on account of which, she was constrained to
leave the matrimonial home and live at her maike. It is further
alleged that petitioner-husband was having illicit relationship
with one lady viz., Khushbu Kumari and hence, he was
subjecting his wife/O.P. No. 2 to torture. O.P. No.2/Soni Devi
has also alleged that her husband and her parents-in-law wanted
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
her to die, so that her husband could remarry Khushbu Kumari
and get handsome dowry. It is further alleged that Soni
Devi/O.P. No.2 has no source of income to maintain herself and
her daughter and despite demand, her husband or her parents-in-
law did not pay even a single penny for her maintenance and
that of her daughter and she has been living a miserable life at
her maike. It is also stated that she has been ready to live with
her husband but her husband has not been ready to keep her in
his matrimonial home. Regarding income of her husband, it is
alleged that her husband is in Government job and his income
from cultivation and business is Rs.24,000/- per month.
Case of Avadh Kishore Sah as per his show cause
4. On notice, petitioner/husband of Soni Devi
appeared before the Family Court and filed his show cause
contesting the maintenance petition filed by his wife and his
daughter. Regarding marriage, it is stated by the petitioner that
his marriage was forcibly solemnized with Soni Devi at
Bababudha Nath Temple, Bhagalpur. He has also disputed the
paternity of Gudiya Kumari, the daughter of Soni Devi. He has
stated that Gudiya Kumari was born to Soni Devi on
08.08.2010, whereas his marriage with Soni Devi was
solemnized on 18.03.2010. As such, Gudiya Kumari was born
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
just after about 4 and ½ months of his marriage with Soni Devi.
It is further claimed by Awadhesh Sah that his wife/Soni Devi is
having illicit relationship with her brother-in-law viz.,
Vishnudeo Sah and she is not interested to continue her
matrimonial life with him. Regarding his employment and
income, he has stated that he is employed in the office of
Collectorate, Saharsa on contract as Executive Assistant in the
month of January, 2010 and his monthly income is only
Rs.11,000/-. He is also willing to keep his wife in his
matrimonial home and despite his efforts, she did not come to
matrimonial home. He has denied the allegation of demand of
dowry and torturing therefor.
Trial and order of the Family Court
5. During trial, the following four witnesses were
examined on behalf of the petitioner-wife before the Family
Court : (i) P.W.-1 - Soni Devi, who is one of the petitioners
herself, (ii) P.W.-2 - Dhirendra Prasad Sah, who is father of
Soni Devi, (iii) P.W.-3, Pawan Kumar Sah, who is brother of
Soni Devi and (iv) P.W.-4, Vishnudeo Sah, who is acquainted
with both the parties. O.P. No. 2/Soni Devi has also filed one
salary slip of her husband as Ext. 1.
6. The opposite party/husband before the Family
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
Court, who is petitioner herein, has examined the following two
witnesses in support of his case : (i) O.P.W-1, Avadh Kishore
Sah, who is opposite party himself before the Family Court and
(ii) O.P.W-2, Birendra Prasad Sah, who is father of Avadh
Kishore Sah. However, no documentary evidence has been filed
on behalf of opposite party/husband.
7. As per the evidence on record and submissions of
the parties, learned Family Court has passed the impugned
order, whereby he has allowed the maintenance to the O.P No.
2/wife and O.P. No. 2/daughter @ Rs. 3,000/- and Rs. 2,000/-
per month respectively from the date of filing of the
maintenance petition i.e. 26.07.2012.
Submissions of the parties
8. I heard learned counsel for the petitioner, learned
APP for the State and learned counsel for the O.P. Nos. 2 and 3.
9. Learned counsel for the petitioner herein submits
that the impugned order is not sustainable in the eye of law and
the same is liable to be set aside.
10. To substantiate his submission, learned counsel for
the petitioner further submits that O.P. No. 2/Soni Devi is not
legally wedded wife of the petitioner because his marriage with
her was forcibly solemnized.
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
11. He further submits that O.P. No. 2/wife is also not
entitled to get maintenance on account of her illicit relationship
with her brother-in-law viz., Vishnudeo Sah and the
petitioner/husband is not biological father of even O.P. No. 3,
who is born to O.P. No. 2, out of illicit relationship, since prior
to the marriage. O.P. No. 3 was born within about 4 and ½
months of the marriage. The marriage was solemnized on
18.03.2010, whereas O.P. No. 3 was born on 08.08.2010, just
after 4 months and 10 days of the marriage. Hence, there is no
legal liability of the petitioner to maintain even O.P. No.3 who is
illegitimate child born to O.P. No.2 due to her illicit relationship
since prior to the marriage.
12. He further submits that O.P. No. 2/wife is not
entitled to get maintenance also because she has left the
matrimonial home on her own on account of her illicit
relationship with brother-in-law viz., Vishnudeo Sah, whereas
the petitioner was willing to keep her in the matrimonial home
and his all efforts to bring her in matrimonial home failed on
account of her refusal to join him at his matrimonial home.
13. He also submits that the marriage between the
petitioner and O.P. No. 2/wife is already dissolved by decree of
divorce dated 01.03.2025, passed by learned Principal Judge,
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
Family Court, Munger in Matrimonial Case No. 88 of 2014
which was filed by the petitioner/husband for dissolution of
marriage under Section 13(1)(1-A)(1-B) of Hindu Marriage Act.
He also filed a copy of the judgment/decree dated 01.03.2025,
passed by learned Family Court, Munger across the Board and
the same was taken on record.
14. Learned counsel for petitioner also submits that
even quantum of maintenance is not sustainable in view of the
income of the petitioner/husband, which is Rs. 11,000/- per
month.
15. Learned APP for the State and learned counsel for
the O.P. Nos. 2 and 3, however, defend the impugned order
submitting that there is no illegality or infirmity in it and the
present Criminal Revision petition is liable to be dismissed.
Relevant statutory provisions and case laws
16. However, before I consider the rival submissions
of the parties, it would be imperative to refer to relevant
statutory provisions and case laws. Section 125 Cr.PC deals
with order for maintenance of wife, children and parents and it
reads as follows:
"125. Order for maintenance of wives, children
and parents.- (1) If any person having sufficient means
neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality
or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself,
a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person
as the Magistrate may from time to time direct :
Provided that the Magistrate may order the father of a
minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate
is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means.
Provided further that the Magistrate may, during the
pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person
as the Magistrate may from time to time direct:
Provided also that an application for the monthly
allowance for the interim maintenance and expenses of
proceeding under the second proviso shall, as far as
possible, be disposed of within sixty days from the date of
the service of notice of the application to such person.]
Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions
of the Indian Majority Act, 1875 (9 of 1875) is deemed
not to have attained his majority,
(b) "wife" includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has
not re-married.
(2) Any such allowance for the maintenance or
interim maintenance and expenses for proceeding shall be
payable from the date of the order, or, if so ordered, from
the date of the application for maintenance or interim
maintenance and expenses of proceeding, as the case may
be.
(3) If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may,
for every breach of the order, issue a warrant for levying
the amount due in the manner provided for levying fines,
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
and may sentence such person, for the whole or any part
of each month's allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the
case may be, remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to
one month or until payment if sooner made:
Provided that no warrant shall be issued for the
recovery of any amount due under this section unless
application be made to the Court to levy such amount
within a period of one year from the date on which it
became due:
Provided further that if such person offers to maintain
his wife on condition of her living with him, and she
refuses to live with him, such Magistrate may consider
any grounds of refusal stated by her, and may make an
order under this section notwithstanding such offer, if he
is satisfied that there is just ground for so doing.
Explanation. - If a husband has contracted marriage
with another woman or keeps a mistress, it shall be
considered to be just ground for his wife's refusal to live
with him.
(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 refuses to live with her
husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an order
has been made under this section is living in adultery, or
that without sufficient reason she refuses to live with her
husband, or that they are living separately by mutual
consent, the Magistrate shall cancel the order."
(Emphasis supplied)
17. As such, as per Section 125 Cr.PC, wife is entitled
to get maintenance from her husband, if she is living separately
from her husband with sufficient reason, but not living in
adultery, and she has no means to maintain herself and the
husband, despite having sufficient means, neglects or refuses to
maintain her. As per case laws, here wife means only a legally
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
wedded wife. One may refer to the following judicial precedents
in this regard:
(i) Yamunabai A. Adhav Vs. Anantrao S. Adhav
(1988) 1 SCC 530
(ii) Savitaben S. Bhatiya Vs. State of Gujarat
(2005) 3 SCC 636
18. As per the Explanation 2 to Section 125(1)
Cr.PC, it also transpires that "wife" includes a woman who has
been divorced by her husband, but has not remarried.
19. From Section 125(1)(b) Cr.PC, it also clearly
transpires that any legitimate or illegitimate minor child whether
married or not but unable to maintain himself/herself is entitled
to get maintenance from his/her father.
20. It is also settled principle of law that proceeding
under Section 125 Cr.PC is summary in nature and meant to
prevent the vagrancy and destitution of wife and children and
provide a speedy remedy for the supply of food, clothing and
shelter to them. Hence, strict standard of proof is not required in
proceeding under Section 125 Cr.PC unlike in matrimonial
proceedings, where strict proof of marriage or paternity is
essential. Here, judicial precedent of Kamala v. M.R. Mohan
Kumar, (2019) 11 SCC 491, may be referred to and relevant
para of the judgment of Hon'ble Supreme Court reads as
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
follows:
"15. Unlike matrimonial proceedings where strict proof of
marriage is essential, in the proceedings under Section 125
CrPC, such strict standard of proof is not necessary as it is
summary in nature meant to prevent vagrancy. This Court
has held that when the parties live together as husband and
wife, there is a presumption that they are legally married
couple for claim of maintenance of wife under Section
125 CrPC. Applying the well-settled principles, in the
case in hand, Appellant 1 and the respondent were living
together as husband and wife and had also begotten two
children. Appellant 1 being the wife of the respondent, she
and the children, Appellants 2 and 3 would be entitled to
maintenance under Section 125 CrPC."
(Emphasis supplied)
21. In Santosh Vs. Naresh Pal, (1998) 8 SCC 447,
Hon'ble Supreme Court has held that the Court is required to
pass order for maintenance under Section 125 CrPC only after
being prima facie satisfaction about the marital status of the
party and such decision regarding the marital status is tentative
finding subject to final order in any civil proceeding, observing
as follows:
"2. .....................In a proceeding for maintenance
under Section 125 CrPC the learned Magistrate was
expected to pass appropriate orders after being prima facie
satisfied about the marital status of parties. It is obvious
that the said decision will be a tentative decision subject to
final order in any civil proceedings, if the parties are so
advised to adopt. Consequently, in our view the High
Court was not justified in interfering with the pure finding
of fact reached by learned Judicial Magistrate in a
proceeding under Section 125 CrPC and therefore only on
this short ground and without expressing any opinion on
the marital rights of the parties which may have to be
adjudicated in civil proceedings, the order of the learned
Magistrate passed under Section 125 CrPC will have to be
affirmed and the judgment and order of the High Court is
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
set aside. The appeal is allowed. No costs.."
(Emphasis supplied)
22. It is also settled principle of law that finding
regarding the validity of marriage or paternity of a child in a
proceeding under Section 125 Cr.PC is tentative and not final,
and it is always subject to order of any Civil Court or Family
court, which are the Competent Courts to conclusively decide
any marital status of a party or legitimacy or illegitimacy of a
child, as emerges from Section 7, 8 and 20 of the Family Courts
Act, 1984. In other words, if the Civil Court or the Family Court
passes any decree in regard to the validity of the marriage or
paternity of the child not in consonance with the finding of this
Court in this proceeding under Section 125 Cr.PC, the decree of
the Civil Court/Family Court would prevail and the party
concerned would be at liberty to modify the order passed under
Section 125 Cr.PC, by moving application under Section 127
Cr.PC, which provides for alteration or modification of the order
in changed circumstances. Here, one may refer to the following
judicial precedents:-
(i) Ivan Rathinam Vs. Milan Joseph
AIRONLINE 2025 SC 57
(ii) Balram Yadav Vs. Fulmaniya Yadav
(2016) 13 SCC 308
(iii) Dwarika P. Satpathy Vs. Bidyut Prava Dixit
(1999) 7 SCC 675
(iv) Santosh Vs. Naresh Pal,
(1998) 8 SCC 447
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
23. Similar view has been taken by Hon'ble Supreme
Court in Dwarika Prasad Satpathy Vs. Bidyut Prava Dixit,
(1999) 7 SCC 675, holding as follows:
"9. It is to be remembered that the order passed in an
application under Section 125 CrPC does not finally
determine the rights and obligations of the parties and the
said section is enacted with a view to provide a summary
remedy for providing maintenance to a wife, children and
parents. For the purpose of getting his rights determined,
the appellant has also filed a civil suit, which is pending
before the trial court. In such a situation, this Court in S.
Sethurathinam Pillai v. Barbara [(1971) 3 SCC 923 : 1972
SCC (Cri) 171] observed that maintenance under Section
488 CrPC 1898 (similar to Section 125 CrPC) cannot be
denied where there was some evidence on which
conclusion for grant of maintenance could be reached. It
was held that order passed under Section 488 is a
summary order which does not finally determine the rights
and obligations of the parties; the decision of the criminal
court that there was a valid marriage between the parties
will not operate as decisive in any civil proceeding
between the parties.
10. After not disputing the paternity of the child and
after accepting the fact that the marriage ceremony was
performed, though not legally perfect as contended, it
would hardly lie in the mouth of the appellant to contend
in a proceeding under Section 125 CrPC that there was no
valid marriage as essential rites were not performed at the
time of the said marriage. The provision under Section
125 is not to be utilised for defeating the rights conferred
by the legislature on the destitute women, children or
parents who are victims of the social environment."
(Emphasis supplied)
24. It is also settled principle of law that in revisional
jurisdiction, the High Court has no power to reassess evidence
and substitute its own finding in regard to positive finding
regarding validity of the marriage or paternity of the child,
unless there is patent perversity of finding of the fact or error of
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
jurisdiction or that of law. But in case of negative finding of
Court in regard to validity of marriage or paternity of child, the
High Court is required even in revisional jurisdiction to re-
evaluate the evidence and come to a conclusion whether the
findings or conclusions reached by the Family Court are legally
sustainable or not, because on account of negative finding, the
child is bastardized and wife is branded as unchaste woman.
Here one may refer to Pravati Rani Sahoo Vs. Bishnupada
Sahoo, (2002) 10 SCC 510, wherein Hon'ble Supreme Court
has held as follows:
"5. ............................... Section 125 CrPC is intended
to curtail destitution and also to ameliorate orphancy. The
High Courts should be slow to interfere with a positive
finding in favour of marriage and paternity of a child.
Hence in such instances this Court has pointed out that
High Courts shall not interfere with such fact findings.
But that principle cannot be imported in the present case
where a child happened to be bastardised as a
consequence of the order passed by the Magistrate and the
claimant was in effect found to be a woman of unvirtuous
morality. In such a situation the High Court should have
entertained revision and re-evaluated the evidence and
come to a conclusion whether the findings or conclusions
reached by the Magistrate are legally sustainable or not.
While maintaining the difference in the overall approach
between an appeal and a revision, the jurisdiction of the
court has to be exercised by the High Court in revision.
6. The impugned order summarily dismissing the
application for revision shows that the jurisdiction has not
even been invoked by the High Court. The impugned
order cannot therefore be sustained. Consequently, we set
aside the order and remit the revision back to the High
Court for disposal of it afresh in accordance with law."
(Emphasis supplied)
Evidence of the petitioners before the Family Court
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
25. Now coming to the evidence of the parties, I find
that the evidence adduced on behalf of O.P. Nos. 2 and 3, who
were petitioners before the Family Court, is as follows:-
(i) P.W.-1 - Soni Devi, who is one of the petitioners
herself, in her examination-in-chief, has reiterated her
statements as made in her maintenance petition. She has also
deposed that she has filed one Criminal Case bearing No. 1711
of 2011, which is pending consideration before learned Court of
S.D.J.M., Bhagalpur. In her cross-examination, she has
deposed that her daughter was born on 08.08.2010 and she lived
in her sasural for 1.5 years. She knows Khusbu Kumari for the
last five years, but she does not know about her domicile,
parentage and caste. One divorce petition filed by her husband
is also pending in the Court of Munger. She came to know about
the illicit relationship of her husband two years back. She has
not seen the appointment letter of her husband and as per the
document, monthly income of her husband is Rs. 9,000/-. She
has no information about the agricultural land of her husband,
nor could she give any details of the land belonging to her
husband.
(ii) P.W.-2 - Dhirendra Prasad Sah, who is father of
Soni Devi, in his examination-in-chief, has supported the
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
averments as made by his daughter in her maintenance petition.
In his cross-examination, he has deposed that Soni Devi and
her daughter is living with him for six year and during this
period, her husband Avadh Kishore had not taken her to his
home. He has further deposed that his daughter has no source of
income, whereas her husband Avadh Kishore has monthly
income of Rs. 25,000/- to 30,000/- as Computer Operator in
ACP office, Saharsa and her daughter has lodged one criminal
case against her husband and her husband has also filed one
divorce petition, which is pending at Munger. He has further
deposed that if her husband withdraws his divorce petition, she
is ready to live with him.
(iii) P.W.-3, Pawan Kumar Sah, who is brother of
Soni Devi, in his examination-in-chief, has also supported the
maintenance petition of his sister. In his cross-examination, he
has deposed that his sister is living separately from her husband
for the last 8 years and her husband does not want to keep her in
his matrimonial home, whereas his sister wants to live with him.
The daughter of his sister is eight years old and one dowry case
has also been lodged against the husband of his sister. The
husband of his sister works in ACP office and have monthly
income of Rs. 18,000/- per month and his sister wants to live
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
with her husband.
(iv) P.W.-4, Vishnudeo Sah, in his examination-in-
chief, has deposed that he is acquainted with both the parties.
He has also supported the maintenance petition filed by Soni
Devi against her husband. In his cross-examination, he has
deposed that Soni Devi is his sister-in-law and she is living at
her maike for the last 7 to 8 years. He has further deposed that
her husband always asks for money and on account of non-
fulfillment of the same, he is not willing to keep in his
matrimonial home. One daughter is also born out of the wedlock
between Soni Devi and her husband and the child is living with
her mother. He has further deposed that husband of Soni Devi is
a Government servant and has monthly income of Rs. 20,000/-
to 25,000/-, whereas Soni Devi has no source of income.
26. Soni Devi has also filed one salary slip of her
husband (Ext. 1) as per which, last date of payment was 13th
September and as per the salary slip, the payment for 13 th
October and 13th November is Rs. 18,000/- on account of
multiplication of Rs. 9000 by 2.
Evidence on behalf of the opposite party before the Family Court
27. The evidence of opposite party before the Family
Court, who is petitioner herein, is as follows:-
(i) O.P.W-1, Avadh Kishore Sah, who is opposite
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
party himself before the Family Court, in his examination-in-
chief, has reiterated his statement as made in his show cause. He
has also stated that he is a contractual employee getting Rs.
11,000/- per month and earlier, he was getting Rs. 9,000/- and
Rs. 6,000/-. In his cross-examination, he has deposed that his
father is working in the office of the Commissioner Saharsa for
25 years. He was appointed in the year, 2010 on contract and no
salary slip is prepared and earlier payment was made through
bank draft, but presently payment is made directly in his bank
account and in his village, there is some cultivable land in the
name of his father in Korea village of Banka District. He has
further deposed that he is not aware of the name of his daughter,
who is living with her mother and the name of school where she
was studying at. He has further deposed that he had gone twice
to her sasural for compromise and taking his wife to his
matrimonial home. He has denied the suggestion that his
monthly income is Rs. 30,000/-.
(ii) O.P.W-2, Birendra Prasad Sah, who is father of
Avadh Kishore Sah, in his examination-in-chief, has also
supported the case of his son, who is contesting the
maintenance petition filed against him. In his cross-
examination, he has deposed that Avadh Kishore Sah is his only
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
son and he is posted at Saharsa ACP office and has monthly
salary of Rs. 11,000/-. He has one bigha of agricultural land in
his village. He has further deposed that marriage of his son with
Soni Devi was forcibly solemnized. When he was confronted
with the photograph of marriage of his son, he admitted that
there is no police person in the photograph. He has denied the
suggestion that the marriage was done forcibly. He has further
deposed that Soni Devi has one daughter who is nine years old.
28. No documentary evidence has been filed on behalf
of opposite party/husband. However, in the course of argument,
learned counsel for the petitioner has filed a copy of the
judgment/decree dated 01.03.2025 passed by learned Principal
Judge, Family Court, Munger, whereby learned Family Court
has dissolved the marriage between the petitioner/ Avadh
Kishore Sah and O.P. No.2 herein/Soni Devi. From perusal of
the judgment, it transpires that petitioner herein/ Avadh Kishore
Sah has filed divorce petition under Section 13(1)(1-A) and (1-
B) of Hindu Marriage Act against his wife-Soni Devi for
divorce on the ground of cruelty and desertion. However,
learned Family Court had dissolved the marriage between the
two on the ground of cruelty but plea of desertion of the
petitioner-husband was rejected.
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
Findings of this Court
29. As such, I find, as per the evidence on record, that
Avadh Kishore Sah, who is petitioner herein, has taken plea that
Soni Devi is not his legally wedded wife on the ground that his
marriage with her was forcibly solemnized. However, I find
that, as per the evidence adduced on behalf of Soni Devi, her
marriage with Avadh Kishore Sah was solemnized as per Hindu
Rites and Customs at Temple without any application of force.
Moreover, I find that petitioner/Avadh Kishore Sah has never
filed any matrimonial petition for annulment of his marriage
with Soni Devi, either under Section 11 or 12 of the Hindu
Marriage Act. I further find that he has filed only a divorce
petition under Section 13 of the Hindu Marriage Act against
Soni Devi and it goes without saying that divorce petition is
filed by the husband only against his legally wedded wife.
Hence, the plea of the petitioner that Soni Devi was not his
legally wedded wife, has no substance.
30. Even the plea of the petitioner that Soni Devi is
now divorced and she is not entitled to get maintenance under
Section 125 Cr.PC is liable to be rejected. As per Explanation
(b) to Section 125(1) Cr.PC, wife includes even divorced wife
and she is entitled to get maintenance under Section 125 Cr.PC,
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
if she has not remarried and it is not a case of the petitioner that
his divorced wife has remarried.
31. As per further plea of the petitioner that Soni
Devi/O.P. No.2 herein is not entitled to get maintenance from
her husband because she has been in illicit relationship with her
brother-in-law prior and subsequent to the marriage is not
sustainable. Here it is pertinent to point out that adulterous life
is no doubt disqualification for any wife to get maintenance
from her husband under Section 125 Cr.PC. However, any
physical relationship of a lady with any person prior to her
marriage does not come within the definition of "adultery"
because adultery is an offence against one's spouse. However,
adulterous life of any wife subsequent to her marriage is
undoubtedly a disqualification for any married wife to get
maintenance from her husband. However, "Living in adultery"
denotes a continuous course of conduct and not isolated acts of
immorality. One or two lapses from virtues may be acts of
adultery, but would not be sufficient to show that the woman
was "living in adultery". A few moral lapse and a return back to
a normal life can not be said to be living in adultery. If the lapse
is continued and followed up by a further adulterous life, the
woman can be said to be "living in adultery". In this regard, one
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
may refer to the following judicial precedents:
(i) Hitesh Deka Vs. Jinu Deka
2025 SCC OnLine Gau 259
(ii)Sukhdev Pakharwal Vs. Rekha Okhale
2018 SCC OnLine MP 1687
(iii) Ashok Vs. Anita
2011 SCC OnLine MP 2249
(iv) Sandha Vs. Narayanan
1999 SCC OnLine Ker 64
(v) Pandurang Barku Nathe Vs. Leela
Pandurang Nathe & Anr.
1997 SCC OnLine Bom 264
32. But in the case on hand, I find that the petitioner-
husband has not made any specific pleadings regarding
adulterous life of his wife-Soni Devi. He was required to give
details of the adulterous life of his wife with reference to time
and place beside giving the name of the adulterer. But I find that
in his pleadings and evidence, except bald allegation that his
wife was having illicit relationship with her brother-in-law, viz.,
Vishnudeo Sah prior and subsequent to the marriage, there is no
specific details regarding such life of his wife. Even, conduct of
petitioner/husband during the subsistence of the marriage does
not show that he was serious about his such allegation, because I
find that no such allegation has been made in his divorce
petition which was filed not on the ground of adultery but on the
ground of cruelty and desertion. Moreover, as per his pleadings,
he was always ready to keep his wife with him. Such
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
willingness on the part of a husband is not possible if he
believes that his wife has been indulged in adulterous life.
Hence, the petitioner has not proved that his wife-Soni Devi was
living in adultery.
33. I further find that petitioner has also failed to
prove that his wife was living at her maike without any rhyme
and reason. As per the claim of the wife-Soni Devi, her
husband-petitioner herein was having illicit relationship with
another lady viz., Khushbu Kumari and hence, he was
subjecting her to ill-treatment/cruelty and she was constrained to
leave her matrimonial home to live at her maike along with the
child. Even in the divorce proceeding, the petitioner-husband
could not prove his allegation of desertion by his wife.
Moreover, one criminal case filed by wife for alleged cruelty is
still pending for consideration in the Court of S.D.J.M.,
Bhagalpur. Hence, I find that Soni Devi was living at her maike
with her minor daughter with sufficient reason.
34. Regarding source of income, I find that as per
pleading and evidence of Soni Devi on record, she has no means
to maintain herself and her daughter living with her, whereas her
husband has monthly income from government job as well as
cultivation. Even the husband/petitioner herein has not pleaded
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
or adduced any evidence that his wife has any source of income
and admittedly, he has been in government job.
35. Hence, I find that there is no doubt about
entitlement of Soni Devi to get maintenance from her
husband/petitioner herein.
36. As far as entitlement of O.P. No.3/Gudiya Kumari
to get maintenance from the petitioner herein is concerned, it is
pleaded on behalf of the petitioner that he is not her biological
father. O.P. No.3/Gudiya Kumari is born to O.P. No.2/ Soni
Devi on 08.08.2010, whereas his marriage with Soni Devi was
solemnized on 18.03.2010, which shows that O.P. No.3/Gudiya
Kumari is born just after 4 months and 10 days of his marriage
with Soni Devi. Hence, it has been submitted on behalf of the
petitioner that Gudiya Kumari/O.P. No.3 is not his legitimate
daughter and she being born out of illicit relationship of Soni
Devi with someone else, is illegitimate child of other man and
hence, he is not liable to pay any maintenance to her.
37. Here, it would be pertinent to point out that as per
Section 112 of Evidence Act that a child born during
continuation of a valid marriage between his/her mother and any
man, the child is held to be legitimate son/daughter of that man,
unless it is shown by that man that he had no access to his wife
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
at any time when the child could have been conceived. Section
112 of the Evidence Act, 1872 reads as follows :-
"112. Birth during marriage, conclusive proof of
legitimacy.--The fact that any person was born during the
continuance of a valid marriage between his mother and
any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had
no access to each other at any time when he could have
been begotten."
38. Hon'ble Apex Court in para 34 of Aparna
Ajinkya Firodia v. Ajinkya Arun Firodia, as reported in
(2024) 7 SCC 773, has observed that Section 112 embodies the
rule of law that the birth of a child during the continuance of a
valid marriage or within 280 days (i.e., within the period of
gestation) after its dissolution shall be "conclusive proof" that
the child is legitimate unless it is established by evidence that
the husband and wife did not or could not have any access to
each other at any time when the child could have been
conceived. The object of this provision is to attach
unimpeachable legitimacy to children born out of a valid
marriage. When a child is born during the subsistence of lawful
wedlock, it would mean that the parents had access to each
other. Therefore, the Section speaks of "conclusive proof" of the
legitimate birth of a child during the period of lawful wedlock.
39. In para 37 of Aparna Ajinkya Firodia case
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
(supra), Hon'ble Apex Court has further observed that
"access" or "non-access" does not mean actual cohabitation but
means the "existence" or "non-existence" of opportunities for
sexual relationship. Section 112 refers to point of time of birth
as the crucial aspect and not to the time of conception. The time
of conception is relevant only to see whether the husband had or
did not have access to the wife. Thus, birth during the
continuance of marriage is "conclusive proof" of legitimacy
unless "non-access" of the party who questions the paternity of
the child at the time the child could have been begotten is
proved by the said party.
40. Hon'ble Apex Court in para 18 of
Thatchinamoorthy Vs. Sivagamy as reported in 2010 (2)
MWN (Civil) 337 has observed that law presumes strongly in
favour of legitimacy of off-spring. Section 112 of Evidence Act
embodies a rule of law that a child born during the continuance
of a valid marriage or during 280 days (within the period of
gestation), it shall be conclusive proof that it is legitimate unless
it is proved by clear and strong evidence that the husband and
wife did not and could not have any access at any time when the
child could have been begotten.
41. Hon'ble Apex Court in para 9 of Sham Lal
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
Alias Kuldip Vs. Sanjeev Kumar & Ors. as reported in
(2009) 12 SCC 454 has observed that Section 112 of the
Evidence Act is based on English Law. Section 112 reproduces
the rule of English Law that it is undesirable to inquire into the
paternity of a child when the mother is a married woman and
the husband had access to her. Adultery on her part will not
justify finding of illegitimacy if husband has had access.
42. Hon'ble Apex Court in para 21 of Goutam
Kundu Vs. State of West Bengal & Anr. as reported in (1993)
3 SCC 418 has observed that this section is based on the well-
known maxim pater est quem nuptiae demonstrant (he is the
father whom the marriage indicates). The presumption of
legitimacy is this, that a child born of a married women is
deemed to be legitimate, it throws on the person who is
interested in making out the illegitimacy, the whole burden of
proving it. The law presumes both that a marriage ceremony is
valid, and that every person is legitimate. Marriage or filiation
(parentage) may be presumed, the law in general presuming
against vice and immorality.
43. In para 22 of Goutam Kundu case (supra),
Hon'ble Apex Court has further observed that it is a rebuttable
presumption of law that a child born during the lawful wedlock
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
is legitimate, and that access occurred between the parents.
This presumption can only be displaced by a strong
preponderance of evidence, and not by a mere balance of
probabilities.
44. In the case on hand, I find that admittedly the O.P.
No.3/Gudiya Kumari is born to Soni Devi (O.P. No.2
herein)/wife of petitioner-Avadh Kishore Sah during the
subsistence of her marriage with him, though it is also not
disputed that child is born just after 4 months and 10 days of
the marriage of Soni Devi with petitioner-Avadh Kishore Sah.
Hence, in view of the law, as provided in Section 112 of the
Evidence Act, 1872, O.P. No.3/Gudiya Kumari is presumed to
be legitimate daughter of the petitioner-Avadh Kishore Sah,
because it has been already found that marriage between
mother of Gudiya Kumari and the petitioner herein was valid
and at the time of birth of the O.P. No.3/Gudiya Kumari, the
marriage between his mother and the petitioner herein was
subsisting. The presumption regarding the paternity of Gudiya
Kumari could have been rebutted only by pleading and proving
by Avadh Kishore Sah his non-access to Soni Devi, the mother
of O.P. No.3/Gudiya Kumari at the time when the child Gudiya
Kumari could have been conceived. But I find that there is no
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
such pleadings and evidence on behalf of the petitioner/Avadh
Kishore Sah that before marriage, he had no access to or
relationship with Soni Devi, except the bald allegation on his
part that his wife was having illicit relationship with her
brother-in-law viz., Vishnudeo Sah prior and subsequent to the
marriage.
45. Moreover, I further find that the petitioner-Avadh
Kishore Sah has never filed any matrimonial petition before
Family Court or any Civil Court regarding declaration in regard
to paternity of O.P. No.3/Gudiya Kumari. Hence, there is no
declaration by any Family Court or Civil Court to the effect that
O.P. No.3/Gudiya Kumari is not legitimate daughter of the
petitioner or she is illegitimate daughter of any other man.
46. Moreover, I have already discussed and found in
the previous paragraphs of this judgment that proceeding under
Section 125 Cr.PC is summary in nature and meant to prevent
the vagrancy and destitution of wife and children and provide a
speedy remedy for the supply of food, clothing and shelter to
them.
47. However, as it has been already discussed and
found in previous paragraphs of the judgment, strict standard of
proof is not required in a proceeding under Section 125 Cr.PC
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
unlike in matrimonial proceedings, where strict proof of
marriage or paternity is essential. Prima facie, satisfaction of the
Court regarding marital status of the parties and the paternity of
the child is sufficient to pass order under Section 125 Cr.PC. It
has been also discussed and found in the previous paragraphs of
this judgment that any finding regarding marital status of the
party or paternity of the child in a proceeding under Section 125
Cr.PC is tentative and not final and it is always subject to order
of any Civil Court or Family Court, which are the competent
courts to conclusively decide the marital status of the party or
legitimacy or illegitimacy of the child.
48. In the case on hand, I find that as per the material
on record O.P. No.3/Gudiya Kumari is born on 08.08.2010 to
Soni Devi during continuation of her valid marriage with
petitioner/Avadh Kishore Sah. Hence, there is mandatory legal
presumption that O.P. No.3/Gudiya Kumari is legitimate
daughter of the petitioner/Avadh Kishore Sah, and there is no
pleading or evidence on record to rebut this conclusive proof.
49. As such, I find that O.P. No.3/Gudiya Kumari is
also entitled to get maintenance from the petitioner/Avadh
Kishore Sah as his legitimate minor daughter.
50. Now coming to the quantum of maintenance
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
awarded by learned Family Court to O.P. No.2 and O.P. No.3 @
of Rs. 3,000/- and 2,000/- per month respectively, I find that
petitioner/Avadh Kishore Sah is in Government job working in
the office of S.P., Saharsa. However, he has not adduced his
salary slip before Family Court during trial and on the other
hand, as per the evidence of P.W.2, his monthly income is
Rs.25,000/- to 30,000/- and as per P.W.-3, his monthly income is
Rs.18,000/- and as per P.W.-4, his monthly income is
Rs.20,000/- to 25,000/-. However, Soni Devi has no source of
income to maintain herself and her daughter.
51. In view of the aforesaid facts and circumstances,
the quantum of maintenance awarded by Family Court is not
excessive in view of the requirement of O.P. Nos. 2 and 3 as
well as income of petitioner/Avadh Kishore Sah as per the
evidence on record.
Order
52. As such, I do not find any perversity of finding of
any fact, or error of law, requiring any interference in the
impugned order. Hence, the petition is, accordingly, dismissed.
53. A copy of this order along with the LCR be sent to
the Court below forthwith.
54. However, before I part with the case, it would be
Patna High Court CR. REV. No.262 of 2020 dt. 07-05-2025
pertinent to clarify that the finding of this Court regarding
validity of the marriage between the parties and paternity of the
child is tentative in nature, subject to any contrary finding of
competent Civil Court or Family Court.
(Jitendra Kumar, J.)
ravishankar/shoaib
AFR/NAFR AFR
CAV DATE 01.05.2025.
Uploading Date 07.05.2025.
Transmission Date 07.05.2025.
