Samir Mandal vs State of Bihar and Another

G.B. Pattanaik J.-Leave granted.

The only question that arises for consideration in this appeal is whether the respondent alleging to be the wife of the appellant was entitled to claim maintenance under Section 125 of the Criminal Procedure Code. By the impugned judgment, the Magistrate has directed payment of maintenance at the rate of Rs 400 p.m. and the High Court refused to interfere with the same.

Mr H.L. Agarwal, the learned Senior Counsel appearing for the appellant contended that the respondent Shibani had filed a criminal case under Section 494 of the Indian Penal Code and in that proceeding the Magistrate has recorded a finding that Shibani could not establish her marriage with Samir, and therefore if the marriage is not established the question of grant of maintenance under Section 125 does not arise. Mr Mukherjee appearing for the respondent, on the other hand, submitted that in that proceeding a finding is recorded with regard to the alleged second marriage with Sachirani and therefore the order would not disentitle the respondent from getting maintenance under Section 125. We have examined the impugned judgment of the learned Sub-Divisional Magistrate and we find that the Magistrate has categorically recorded a finding that Shibani has failed to establish her marriage with Samir as well as she has also failed to establish the alleged second marriage. At any rate, if the marriage between Shibani and Samir has not been established then the question of grant of maintenance under Section 125 would not arise. In the aforesaid circumstances, we allow this appeal and set aside the order of the Magistrate directing grant of maintenance.