Crl. App. No.  715  of 2010 @ SLP(Crl.) 7197 of 2008                                                                                                     1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  715  OF 2010 [arising out of SLP(CRL.) No. 7197 of 2008]

    GOBARDHAN PANDIT ..... APPELLANT

VERSUS

    STATE OF BIHAR & ANR. ..... RESPONDENTS

O R D E R

1. Leave granted.

2. This  appeal  has  been  filed  by  the  husband  

impugning the judgment of the High Court of Judicature  

at  Patna  dated  14th August,  2008,  whereby  while  

noticing that the wife  had re-married has nevertheless  

rejected the application of the husband, calling upon  

the Court to set aside the order of maintenance ordered  

by the courts below under Section 125 of the Code of  

Criminal  Procedure.   The  learned  counsel  for  the  

appellant has argued that in the light of the documents

Crl. App. No.  715  of 2010 @ SLP(Crl.) 7197 of 2008                                                                                                     2

and record which have been referred to in the paper  

book,  it  was  clear  that  subsequent  to  the  divorce  

obtained  by  the  appellant-husband,  the  wife  had  

remarried and had also borne a child from the second  

husband.  The learned counsel for the respondent-wife  

has, however, submitted that there was no evidence to  

suggest that such marriage had indeed taken place or  

that a child had been born out of the second marriage.

3. We  notice  from  the  impugned  order  that  the  

question of the wife's marriage had indeed been raised  

before the High Court for the first time but had been  

rejected  on  the  ground  that  there  was  no  evidence  

placed to show the factum of the second marriage or  

otherwise.  We are, however, of the opinion that in the  

light of the documents that have come on record and in  

the light of the provisions of Section 125 Cr.P.C., it  

would  be  appropriate  that  the  factum  of  the  second  

marriage  be examined  after the leading of evidence as  

the maintenance under Section 125 Cr.P.C. would depend  

on the  factum of the second  marriage  as also the  

fact as to whether the child that  has allegedly  been  

born  to  the  respondent-wife   was   in  or  outside  

wedlock.  We, accordingly, allow this appeal, set aside  

the impugned order and remit the case to the trial

Crl. App. No.  715  of 2010 @ SLP(Crl.) 7197 of 2008                                                                                                     3

court for decision  afresh in accordance with law.  The  

parties   would   be  entitled   to  lead  evidence  in  

support of their respective cases and we request the  

trial court to take a quick decision in the matter as  

it has been pending since long.  We also clarify that  

any remarks made in this judgment would not be taken as  

a reflection on the merits of the case.  As an interim  

arrangement,  more  particularly,  keeping  in  view  the  

explanation under Section 125(1) of the Cr.P.C., we  

direct that till the trial court takes a decision in  

the matter,  the maintenance that is being paid to the  

respondent-wife would be continued to be paid.   

4. The appeal is allowed in the aforesaid terms.  

Parties  shall  appear  before  the  trial  court  on  11th  

August, 2010.  There would be no order as to costs.

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [R.M. LODHA]

NEW DELHI APRIL 06, 2010.