MANU/BH/1101/1999

Equivalent Citation: 2000(1)PLJR1034

IN THE HIGH COURT OF PATNA
Criminal Revision No. 233 of 1998
Decided On: 06.12.1999
Appellants:Samir Mandal
Vs.
Respondent:The State of Bihar and Shibani Mandal
Hon'ble Judges/Coram:
I.P. Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: M/s. N.K. Agrawal and A.K. Jain
For Respondents/Defendant: Mr. Kaushal Kumar Jha for the O.P. No. 2 and Mr. A.P.P. for the
State
Subject: Criminal
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Section 11, Code of Civil Procedure, 1908 (CPC) - Section
12, Code of Civil Procedure, 1908 (CPC) - Section 13, Code of Civil Procedure, 1908 (CPC) Section 14, Code of Civil Procedure, 1908 (CPC) - Section 125, Code of Civil Procedure, 1908
(CPC) - Section 4; Code of Criminal Procedure, 1973 (CrPC) - Section 125, Code of Criminal
Procedure, 1973 (CrPC) - Section 397(1), Code of Criminal Procedure, 1973 (CrPC) - Section
401; Indian Evidence Act, 1872 - Section 115, Indian Evidence Act, 1872 - Section 40, Indian
Evidence Act, 1872 - Section 40, Indian Evidence Act, 1872 - Section 41, Indian Evidence Act,
1872 - Section 42, Indian Evidence Act, 1872 - Section 40, Indian Evidence Act, 1872 - Section
41, Indian Evidence Act, 1872 - Section 42, Indian Evidence Act, 1872 - Section 43, Indian
Evidence Act, 1872 - Section 44, Indian Evidence Act, 1872 - Section 41, Indian Evidence Act,
1872 - Section 42, Indian Evidence Act, 1872 - Section 43, Indian Evidence Act, 1872 - Section
44; Indian Penal Code (45 Of 1860) (IPC) - Section 109, Indian Penal Code (45 Of 1860) (IPC)
- Section 409, Indian Penal Code (45 Of 1860) (IPC) - Section 494; Prevention Of Corruption
Act, 1988 - Section 5(1)(c)
Cases Referred:
Madhusudan Singh and another vs. State of Bihar MANU/SC/0273/1995; S.P.E., Madras vs.
K.V. Sundravelu MANU/SC/0158/1978; All Hassan and Ors. vs. State MANU/UP/0258/1974;
Kharkan and Ors. vs. The State of Uttar Pradesh MANU/SC/0086/1963; Anil Behari Ghosh vs.
Smt. Latika Bala Dassi and Ors. MANU/SC/0078/1955; Sumitra Devi vs. Bhikan Choudhary
MANU/SC/0121/1985
Disposition:
Application Dismissed
Citing Reference:

Discussed

Distinguished

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Mentioned

Case Note:
Law of Evidence - Principle of Estoppel - Applicability of - Section 115 of Indian
Evidence Act, 1872; Section 494 of Indian Penal Code, 1860 (IPC) - Application
against order passed by Sub-Divisional Judicial Magistrate, by which an order had
been passed for paying maintenance to opposite party no. 2/wife at rate of Rs. 400
per month by Petitioner - Whether principle of estoppel would apply to facts of
present case and, therefore, entire claim of Opposite party no. 2 was hit by same Held, estoppel dealt with question of fact and not of rights - Estoppel was only a rule
of evidence which prevented a party from alleging and proving a fact contrary to his
earlier stand - A person was not allowed to plead contrary of a fact or state a thing
which he had formerly asserted as existing - If a person by his act or omission
intentionally caused or permitted another person to believe a thing to be true and on
any such representative other person acted believing it to be correct, then in that
situation that person would not be allowed to retrace his steps or to deny truth of a
thing declared or asserted by him -Law as contained in Section 115 of Act, was a rule
of evidence that had to be formulated and operated in Courts of law - In order to
bring a case under Section 115 of Act, certain ingredients had to be specified Estoppel was a rule of civil action - It had no application in criminal proceeding Principle of estoppel had got no place in criminal law - In present case, in spite of
acquittal of Petitioner in case under Section 494 of IPC, Opposite party no. 2 would
not be estopped from asserting in present case that she was legally married wife of
Petitioner - Courts below had concurrently held that, she was legally married wife of
Petitioner and principle of estoppel would not apply in a criminal case under facts and
circumstances - Impugned judgment was confirmed - Application dismissed
JUDGMENT
I.P. Singh, J.
1. This is an application under sections 397(1) and 401 of the Code of Criminal Procedure, 1973
(in short 'the Code'). It is directed against the order dated 20th March, 1998 passed by Shri
D.K. Sinha, Sub-Divisional Judicial Magistrate, Jamtara in Cr. Misc. No. 17 of 1990 by which an
application filed under section 125 of the Code by opposite party no. 2, the wife, has been
allowed and an order has been passed for paying maintenance to her at the rate of Rs. 400/per month by the present petitioner. The case of opposite party no. 2 was that she was married
to the petitioner according to customary religious rites. At the time of her marriage her father
had given her ornaments etc. On her marriage she went to her Sasural and started living with
the present petitioner as his wife. Subsequently the petitioner and the members of his family
began to demand a sum of Rs. 20,000/- in cash as dowry and put pressure on opposite party
no. 2 for its payment. Since, however, the father of opposite party no. 2 happened to be too
poor this demand could not be fulfilled, which resulted in assault on opposite party no. 2 and
she was denied food and clothing. She was driven out of her house and was forced to live with
her father. In her petition filed under section 125 of the Code opposite party no. 2 had
contended that the petitioner is a man of means and subsequently he has also married one
Sachirani Mandal.
2. In the show cause filed by the petitioner in the case under section 125 of the Code he has
taken the stand that allegations against him were frivolous and fictitious. The applicant opposite
party no. 2 had filed a complaint case against the present petitioner under section 494 of the
Indian Penal Code (P.C.R. Case No. 99 of 1984/Tr. No. 122 of 1990). Thereafter the present
application under section 125 of the Code was filed only to harass the present petitioner. There
was no marriage between the petitioner and opposite party no. 2. She being a lady of
questionable character; was having sexual relationship with her brother-in-law. The complaint
petition under section 494 of the Indian Penal Code was filed in the year 1984 and its judgment
was delivered on 29th July, 1990 and in between the period the petitioner got married to one
Sachi Rani in the year 1986 and has been blessed with two male children. There is no earthly

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reason why opposite party no. 2 waited too long to claim maintenance specially when according
to her case she was expelled from the house. Thereafter the present petitioner was married to
Sachi Rani in the year 1986. In the present petition filed under section 125 of the Code opposite
party no. 2 has suppressed the fact of filing a case under section 494 of the Indian Penal Code
and its dismissal. The judgment dated 24.7.1990 passed in the case filed under section 494 of
the Indian Penal Code became final since it was not challenged or set aside by any court.
3. It has further been contended that earlier the claim for maintenance of opposite party no. 2
was dismissed on 24.2.1995 by the Judicial Magistrate and the same was confirmed on appeal
by the Additional Sessions Judge. Both these orders were, however, were quashed by this
Hon'ble Court in Cr.W.J.C. No. 645 of 1997 by which the trial court was again asked to
pronounce the judgment on the basis of the materials available on record. This is how the
impugned judgment has been passed. The judgment was passed on 24.7.1990 in the case filed
under section 494 of the Indian Penal Code. This complaint case was dismissed. In this
judgment it was held that opposite party no. 2 is not the married wife of the petitioner. Since
no appeal has been filed against this judgment the finding of the court became final and the
claim of opposite party no. 2 for her maintenance under section 125 of the Code is barred by
the principle of estoppel. The opposite party no. 2 was living in adultery even after her alleged
marriage to the present petitioner and as such she is not entitled to any maintenance. The
evidence of her witnesses suffered from material contradiction and, therefore, no reliance on
the same can be placed. The findings of the learned court below are perverse and contrary to
the evidence adduced by A.Ws. or O.P.Ws. From the evidence it would appear that at the time
of the alleged marriage with the petitioner, opposite party no. 2 had a pregnancy of four
months. This will show that she was leading a life of adultery. On these grounds; amongst
others; it has been contended that the opposite party no. 2 is not entitled to any maintenance
and, therefore, the impugned judgment of the learned court below be quashed.
4. The only point for decision before me whether this application is fit to be allowed or not.
5. At the outset the learned counsel for the petitioner has seriously contended before me that
since the present opposite party no. 2 (who had filed the petition under section 125 of the
Code) had filed a complaint case under section 494 of the Indian Penal Code against the
present petitioner which ended in his acquittal, she would not be entitled to any maintenance.
In the said case, as will appear from the copy of the judgment (Annexure-1), the allegation
against the present petitioner was that he had driven away his wife (Opposite party no. 2) from
his place since her father was not prepared to meet a fresh demand of a dowry of Rs. 20,000/-.
Opposite party no. 2 has further contended that on 25.5.1984 the present petitioner had
married one Sachi Rani Bala Devi on 2.6.1994. As such, opposite party no. 2 filed complaint
petition under sections 494 and 109 of the Indian Penal Code on the ground that the present
petitioner has taken the second wife even when opposite party no. 2, his legally married wife,
was alive. It may be stated here that section 494 of the Indian Penal Code relates to an offence
when a husband having a wife living marries again. In the said case filed under section 494 the
allegation of opposite party no. 2 was that though she is the legally married wife of the present
petitioner and is still alive the present petitioner has taken a second wife and, therefore, he is
liable, to be punished under section 494 of the Code. Annexure-1 shows that the learned
Magistrate who tried the case under section 494 of the Indian Penal Code has observed in
Paragraph 6 of his judgment that not a single witness was examined in whose presence the
alleged second marriage was performed by the present petitioner with Sachi Bala Devi. In this
connection he has referred the evidence of P.Ws. 1 and 2 who in their examination-in-chief had
stated about this marriage. In his cross examination P.W.2 has stated that he had not seen the
marriage of the present petitioner with Sachi Bala Devi being performed. The learned trial court
disbelieved the evidence of P.Ws. 1 and 2 and has held as follows:Thus, prosecution could not prove that Samir Mandal was married to Shibani Mandal
and he has again married Sachi Bala Devi, during continuance of relationship with
his first legally married wife Shibani Mandal, as alleged.
This is how he held that the complainant (present opposite party no. 2) failed to prove the
charge under section 494 of the Indian Penal Code against the present petitioner through legal

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and sufficient evidence. He accordingly held him not guilty of this charge and acquitted him.
6. It is not in dispute that against this judgment passed by the learned Magistrate no appeal
was filed. Under the circumstances it has been seriously argued before me that this finding of
the learned Magistrate will bar the application of opposite party no. 2 filed under section 125 of
the Code inasmuch as she will be stopped from taking the plea that she is the legally married
first wife of the present petitioner. It was the submission of the learned counsel for the
petitioner that the principle of estoppel will apply to the facts of the present case and,
therefore, the entire claim of the present opposite party no. 2 is hit by the same. Since a
serious question of law has been raised in this connection it is necessary for me to examine the
same in detail.
7. This takes us to the consideration of the question what is meant by the law of estoppel and
what are the principles underlying it. Estoppel has been defined in section 115 of the Indian
Evidence Act. It runs as follows:
115. Estoppel.When one person has, by his declaration, act or omission,
intentionally caused or permitted another person to believe a thing to be true and to
act upon such belief, neither he nor his representative shall be allowed, in any suit
or proceeding between himself and such person or his representative, to deny the
truth of that thing.
Illustration.A intentionally and falsely leads B to believe that certain land belongs to
A, and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A, and A seeks to set aside the sale on
the ground that, at the time of the sale, he had no title, He must not be allowed to
prove his want of Title.
8. From the aforesaid it would become clear that the very essence of principle of law of estoppel
would be that when some body by his declaration, act or omission intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief then in such
a situation neither he nor his representative will be allowed to deny the truth of that thing.
From this it would appear that estoppel deals with the question of fact and not of rights. A
person is not estopped from asserting a right which he has said which he will not assert.
Estoppel is only a rule of evidence which prevents a party from alleging and proving a fact
contrary to his earlier stand. By it a person is not allowed to plead the contrary of a fact or
state a thing which he has formerly asserted as existing. The rule, which is also at times viewed
as a substantive rule of law comes into whenever a person causes another to believe a thing to
be true and act upon such belief and subsequently he alters his petition. The foundation of the
rule is the equitable doctrine that it would be unjust, if a person, who by his representation has
induced another person to act in manner which otherwise he would not have done, is permitted
to deny the truth of his former representation to the detriment of the person who acted on it.
9. From the aforesaid it would become clear that in the case filed under section 494 of the
Indian Penal Code opposite party no. 2 did not cause or permit another person (the present
petitioner) to believe a thing to be true and to act upon such belief. In the case she has alleged
that the present petitioner had committed the offence under section 494 of the Indian Penal
Code. She, however, could not produce sufficient evidence to the satisfaction of the learned trial
court to warrant conviction of the present petitioner. Under the circumstances it is clear that the
present case will not be hit by the principle of law of estoppel. It may be stated here that this
was a criminal litigation in which the rights of the parties were not adjudicated upon. Since,
however, opposite party no. 2 could not prove her allegations made under section 494 of the
Indian Penal Code by cogent evidence to the satisfaction of the trial court the case ended in
acquittal. Therefore, this judgment will not act as estoppel to the present claim of opposite
party no. 2 made in her petition filed under section 125 of the Code.
10. It has been further contended on behalf of the petitioner that as he has been acquitted of

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the charge under section 494 of the Indian Penal Code he can no longer be asked to pay
maintenance to opposite party no. 2, since the learned trial court has disbelieved her claim of
being the legally married wife of the present petitioner. In this connection reliance has been
placed on the case of Madhusudan Singh and another vs. State of Bihar (MANU/SC/0273/1995 :
A.I.R. 1995 S.C. 1437). The facts of the said case are, however, entirely different. In the said
case the appellants were charged under various sections of the Indian Penal Code as also the
Prevention of Corruption Act. One of the section under which they were charged was section
409 of the Indian Penal Code. Similarly one of the sections of the Prevention of Corruption Act,
1947 under which they were charged was under section 5(1)(c). It appears that the trial court
acquitted the appellants under section 409 of the Indian Penal Code but sentenced them under
various other provisions of law including under section 5(1)(c) of the Prevention of Corruption
Act. When the appeal came to the High Court the conviction of the appellants was maintained
except that the substantive sentence of imprisonment was reduced to the period already
undergone by them. It was under this circumstance that it was held by the Apex Court that
since the appellants were acquitted of the charge under section 409 of the Indian Penal Code;
their conviction under section 5(1)(c) of the Prevention of Corruption Act which is based on
similar ingredients can not be sustained. I can do no better than to quote paragraph 4 of the
judgment of the Hon'ble Supreme Court which runs as follows:
4However, in view of their acquittal by the trial court for the offence under section
409 I.P.C., we find that their conviction for the offence under section 5(1)(c) of the
Prevention of Corruption Act, 1947, which is based on similar ingredients cannot be
sustained.
11. In this connection section 5(1)(c)of the Prevention of Corruption Act may be quoted which
reads as follows:
(c) if he dishonestly or fraudulently misappropriated or otherwise converts for his
own use any property entrusted to him or under his control as a public servant or
allows any other person so to do, or
From this it would appear the ingredients of the offence under this section are very much
similar to the ingredients of an offence under section 409 of the Indian Penal Code and since
appellants were acquitted by the trial court of this offence under section 409 of the Indian penal
Code, the Hon'ble Supreme Court set aside their conviction under section 5(1)(c) of the
Prevention of Corruption Act but their conviction under other sections of the Indian Penal Code
and the Prevention of Corruption Act were maintained.
12. From the facts stated above it is dear that the aforesaid decision is of no help to the
petitioner inasmuch as the case under section 494 of the Indian Penal Code had failed for want
of sufficient evidence and it will not affect the petition of opposite party no. 2 filed under section
125 of the Code. Hence I do not find any merit in this contention of the learned counsel for the
petitioner.
13. On behalf of the petitioner it has further been submitted that Siwani Mandal (opposite party
no. 2) had filed a criminal case under section 494 of the Indian Penal Code against him which
was registered as P.C.R. Case No. 99/84/Tr.No. 122/90. In this case also it was her allegation
that she was the legally married wife of the present petitioner who drove her out from his house
since her father was not in a position to pay Rs. 20,000/- as dowry. It was further alleged that
the present petitioner again married one Sachi Bala Devi even when his marriage with opposite
party no. 2 was still subsisting. On this ground she alleged that the present petitioner had
committed an offence under section 494 of the Indian Penal Code and he should be punished
accordingly. From the Judgment of the learned trial court as contained in Annexure-1 it appears
that the learned court below held that opposite party had failed to prove the charge under
section 494 of the Indian Penal Code and he accordingly held the present petitioner as not
guilty under this section. In paragraph 6 of the judgment, however, he has held that the
prosecution could not prove that the present petitioner was married to the present opposite
party no. 2 and that he had again married Sachi Bala Devi during the continuation of the
relationship with his first legally married wife Siwani Mandal (opposite party no. 2).

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14. On the strength of this finding of the learned trial court in the case under section 494 of the
Indian Penal Code the learned counsel appearing on behalf of the petitioner has submitted that
since no appeal or revision against this judgment has been filed by opposite party no. 2 its
findings as noted above still stand and present opposite party no. 2 is, therefore, estopped from
saying that she is the legally married wife of the present petitioner. Since this plea taken on
behalf of the present petitioner involves a question of law I propose to discuss it in detail.
15. To sum up the law relating to estoppel as contained in section 115 of the Evidence Act may
briefly be stated as follows.
In plain words as per this section a person shall not be allowed to say one thing at one time and
the opposite of it at another time. A reading of this section will clearly show that it applies to
the person who by his declaration intentionally caused another person to believe a thing to be
true and to act upon such belief he will not be permitted to deny the truth of that thing, in any
suit or proceeding between him and such other person. Thus this law clearly shows that if a
person by his act or omission intentionally caused or permitted another person to believe a
thing to be true and on any such representative the other person acts believing it to be correct,
then in that situation that person would not be allowed to retrace his steps or to deny the truth
of a thing declared or asserted by him. This is the simple law relating to the law of estoppel.
The law as contained in section 115 of the Indian Evidence Act is a rule of evidence that has to
be formulated and operated in the courts of law. In order to bring a case under section 115of
the Evidence Act certain ingredients have to be specified. They are as follows:
(i) There must be a representative by the person or his authorised agent.
(ii) The representative must be of the existing of facts enforceable in contracts.
(iii) The representative must have been meant to be relied upon.
(iv) There must have been belief on the part of the other party in its truth.
(v) The declaration, act or omission must have actually caused some body else to
act on the faith of it and to alter his former position to his prejudice or detriment.
(vi) Person claiming the benefit of estoppel must show that he was not aware of
true state of things. It is only if the aforesaid circumstances are satisfied that the
principles of estoppel will apply.
16. It may be stated here that the law with regard to estoppel may be summarised as follows:
(i) Estoppel is a rule of evidence.
(ii) There is no estoppel against statute.
(iii) A person is not estopped from asserting the right even when he had earlier said
that he will not assert the same.
(iv) In plain words a person shall not be allowed to say a thing at one time and
opposite of it to another time.
(v) Estoppel deals with the question of facts and not with question of rights.
(vi) No action can be founded on the principle of estoppel.
(vii) Estoppel is a rule of civil action.
(viii) It has no application to criminal proceedings.

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(ix) The principle of estoppel has no place in criminal law.

(x) The principle of estoppel can not over-ride the provisions of any statute.
(xi) The question of estoppel must be raised at the proper time and in the proper
manner.
(xii) For showing the estoppel by judgment sections 11 to 14 of the Code of Civil
Procedure and sections 40 to 44 of the Evidence Act will have to be applied.
17. In the case of S.P.E. Madras vs. V. Sundravelu (MANU/SC/0158/1978 : A.I.R. 1978 S.C.
1017) it has been held that unless a judgment of the criminal court bars a trial the judgment of
the criminal courts are not relevant in another criminal case. The same view has been taken in
the case of Ali Hasan & others vs. The State (MANU/UP/0258/1974 : 1975 Cri. L.J. 345). In the
case of Perumal vs. Devarajan and others (A.I.R. 1974 Mad 14) it has been held that the
criminal courts judgment is admissible only to the extent of factum of charge, conviction or
acquittal. In the case of Kharkan and others vs. State of Uttar Pradesh (MANU/SC/0086/1963 :
A.I.R. 1965 S.C. 83) it has been held that the earlier judgment is relevant only to show the
parties and the decision but it can not be relied upon for the appreciation and interpretation of
evidence. A previous judgment is relevant to bar the second case on the same allegations but
the reasons for any finding in the earlier judgment can not be relied upon in the subsequent
judgment. In the case of Anil Behari Ghosh vs. Smt. Latika Bala Dassin and others
(MANU/SC/0078/1955 : A.I.R. 1955 S.C. 566) it was submitted before the Hon'ble Supreme
Court that one Cham was convicted of murder by the Sessions Court. It was held by the Hon'ble
Supreme Court in that case that though judgment is relevant only to show that there was such
a trial resulting in the conviction and sentence of Charu to transportation for file and not the
evidence of the fact that Charu was the murderer.
18. From the aforesaid it would appear that estoppel is a rule of civil action. It had no
application in criminal proceeding. The principle of estoppel has got no place in criminal law. So
far as the present case is concerned on behalf of the petitioner it has been tried to show that
the present opposite party no. 2 is estopped from asserting that she is the legally married wife
of the petitioner since in the judgment passed in the case under section 494 of the Indian Penal
Code (which was filed by the opposite party no. 2) the trial court held that she has not been
able to show that she is the legally married wife of the petitioner. As stated above there is no
force in this submission. It has been pointed out that there is no estoppel so far as the criminal
judgments are concerned. In this connection reference may be made to sections 11 to 14 of the
Code of Civil Procedure as also to sections 40 to 44 of the Evidence Act. So far as section 11 to
14 of the Code of Civil Procedure are concerned they deal with res-judicata, bar of further suit,
judgments and other presumptions. These provisions of law will apply to civil litigation only and
not to criminal cases. So far sections 40 to 44 of the Indian Evidence Act are concerned they
relate to the situation when a previous judgment bars a second suit or trial. Section 41 deals
with relevancy of the judgments in cases of probate etc. Section 42 deals with relevancy and
effect of judgments, orders or decree, other than those mentioned in Section 41. Section 43
deals with the judgments etc. other than those mentioned in Sections 40 to 42 when relevant.
Section 44 deals with judgments delivered by the courts which are not competent but which
were obtained by fraud or collusion.
19. According to section 40 of the Evidence Act the previous judgment can bar the second suit
in a given situation. It is similar to the provision made under section 300 of the Code
corresponding to section 403 of the Old Code of Criminal Procedure. It lays down that a person
who has once been tried by a court of competent jurisdiction for an offence and convicted or
acquitted of such offence shall not be liable to be tried for the offence when such conviction or
acquittal shall remain in force.
20. I have discussed thread bare but in brief, the principle of law of estoppel as contained in
section 115 of the Evidence Act. As pointed out above in the present case; inspite of the
acquittal in the case under section 494 of the Indian Penal Code; the present petitioner opposite
party no. 2 will not be estopped from asserting in the present case that she is the legally

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married wife of the petitioner. The learned courts below have concurrently held that she is the
legally married wife of the petitioner and the principle of estoppel will not apply in a criminal
case under the facts and circumstances as pointed out earlier. Hence I do not find any force in
this contention of the learned counsel for the petitioner.
21. In revision petition a reference has also been made to the case of Sumitra Devi vs. Bhikan
Choudhary (MANU/SC/0121/1985 : A.I.R. 1985 S.C. 765). In this case it has been observed
that for a valid marriage according to Hindu law, certain religious rites have to be performed.
Invoking the fire and performing Saptapadi around the sacred fire have been considered by the
Supreme Court to be two of the basic requirements for a traditional marriage. It was further
held that there can be a marriage acceptable in law though performed according to customs
which do not insist on performance of such rites referred to above and even marriages of this
type give rise to legal relationship of husband and wife which law accepts.
22. In the present case as will appear from the impugned judgment the evidence of A.Ws. has
been properly discussed. A.W.1 is the Priest who has stated that the marriage of opposite party
no. 2 with the present petitioner had taken place according to Hindu Religious rites in a temple.
A.W.2 is the father of opposite party no. 2. He has also supported the factum of this marriage
between the present petitioner and opposite party no. 2 in the Durga Temple according to
Hindu customary rites. Same is the statement of A.W.3. From this it would appear that the
evidence on record has sufficiently proved, the marriage between the present petitioner and
opposite party no. 2 and this fact has been properly discussed in the impugned judgment. In
this connection a reference has also been made to the order dated 12.12.1997 passed in
Cr.W.J.C.No.645 of 1997 (Annexure-2). In this decision the following observation has been
made by this Court:
.......In this case, the petitioner has examined altogether six witnesses in support of
her case and they have all consistently supported the fact that the marriage had
been performed according to the Hindu customary rites.
23. From this it would appear that this Court had occasion to examine the question of
sufficiency of evidence with respect to the marriage of the present petitioner with opposite
party no. 2 and had held that six witnesses examined on behalf of the petitioner had
consistently supported the factum of marriage between the present petitioner and opposite
party no. 2. Hence the aforesaid decision of the Hon'ble Supreme Court is of no assistance to
the petitioner.
24. On behalf of the petitioner it has been contended that opposite party no. 2 was leading a
life of adultery and, therefore, she would not be entitled to any maintenance. In this connection
my attention has been drawn to some evidence of record to show that even at the time of the
marriage between the petitioner and opposite party no. 2 she was pregnant. This, however, will
not be a bar to any claim for maintenance inasmuch as any such adultery as alleged had taken
place prior to the marriage and not subsequent to it. In this connection a reference may be
made to sub-sections 4 and 5 of section 125 of the Code. Sub-section 4 says that no wife shall
be entitled to receive an allowance from her husband under this section if she is living in
adultery. This pre-supposes the marriage between the wife and husband and any alleged
adultery prior to the marriage will not disentitle the wife to maintenance because the
expressions used in this section are wife and husband which pre-suppose that they are already
married. So far as sub-section 5 is concerned this relates to the period after passing an order of
maintenance according to which if it is found that the wife is living in adultery even subsequent
to the passing of the order of maintenance the Magistrate can cancel the same. Hence on this
ground opposite party no. 2 can not be denied maintenance.
25. So far as the quantum of maintenance is concerned the learned Magistrate has allowed a
sum of Rs. 400/- per month as maintenance. In my view in the days of high prices Rs. 400/per month can not, by any stretch of imagination, be said to be excessive. For the detailed
discussions made above it becomes clear that there is no merit in this application. It is,
accordingly, dismissed and the impugned judgment is hereby confirmed. The order dated
30.6.1998 passed by this Court staying the operation of the impugned order is hereby vacated.

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