Case Background
This case arose from a long-running marital dispute between a husband and wife, eventually reaching the Patna High Court in a criminal revision.
On 26.07.2012, the wife and her minor daughter filed Misc. Case No. 96 of 2012 under Section 125 of the Code of Criminal Procedure (Cr.P.C.) before the Principal Judge, Family Court, Bhagalpur. They claimed maintenance from the husband and his parents. Later, the parents were deleted from the case, and the proceedings continued only against the husband.
The wife alleged that she had been driven out of her matrimonial home and left with no support, forcing her to live at her parental home (maike) with the minor child. The husband entered appearance and filed his show cause, contesting both the wife’s status as legally wedded wife and his paternity of the child.
After recording evidence from both sides, the Principal Judge, Family Court, Bhagalpur, by order dated 14.01.2020, directed the husband to pay Rs. 3,000 per month to the wife (O.P. No. 2) and Rs. 2,000 per month to the daughter (O.P. No. 3). The maintenance was made payable from the date of the application, i.e., 26.07.2012, with arrears to be cleared in three installments within six months. Maintenance to the daughter was made payable till her marriage.
The husband challenged this order in Criminal Revision No. 262 of 2020 before the Patna High Court. During the pendency of the revision, a decree of divorce dated 01.03.2025 passed in Matrimonial Case No. 88 of 2014 by the Principal Judge, Family Court, Munger, was produced before the High Court. That decree dissolved the marriage on the ground of cruelty but rejected the plea of desertion.
What the Court Examined and Decided
The Patna High Court, through Hon’ble Mr. Justice Jitendra Kumar, examined the entire factual and legal background, including pleadings, oral evidence of the parties, the law on maintenance under Section 125 Cr.P.C., and important Supreme Court and High Court judgments.
The wife’s case in her maintenance petition was that her marriage with the husband was solemnised on 18.03.2010 as per Hindu rites and customs, and a daughter (O.P. No. 3) was born from the wedlock on 08.08.2010. She alleged that the husband and his parents demanded additional dowry and subjected her to physical assault when the demand was not fulfilled. She claimed she was forced to leave her matrimonial home and live at her maike.
She further alleged that the husband had an illicit relationship with a woman named Khushbu Kumari, and that he and his parents wanted her to die so that the husband could remarry that woman and obtain handsome dowry. She asserted that she had no independent income and that neither her husband nor her in-laws were providing any money for her or the child’s maintenance.
On income, she claimed the husband had a government job and earned around Rs. 24,000 per month from service, cultivation and business. She also stated she was willing to live with her husband, but he was not ready to keep her.
The husband, in his show cause, gave an entirely different story. He claimed his marriage with the wife was forcibly solemnised at Bababudha Nath Temple, Bhagalpur. He also disputed the paternity of the child, arguing that the daughter was born on 08.08.2010, just about 4½ months after the marriage on 18.03.2010, and therefore could not be his legitimate child. He alleged that the wife had an illicit relationship with her brother-in-law, Vishnudeo Sah, and was not interested in continuing her matrimonial life with him.
Regarding income, the husband claimed he was working on contract as Executive Assistant in the Collectorate, Saharsa, since January 2010, and his monthly income was only Rs. 11,000. He stated he was willing to keep his wife in the matrimonial home and that she had refused to come despite his efforts. He denied dowry and cruelty allegations.
Before the Family Court, the wife examined herself as P.W. 1, her father as P.W. 2, her brother as P.W. 3, and another relative, Vishnudeo Sah, as P.W. 4. She also produced a salary slip of the husband (Exhibit 1). Their evidence supported the allegations of cruelty, lack of maintenance, and the husband’s employment in a government office with a much higher income than he admitted.
In cross-examination, the wife confirmed her daughter’s date of birth as 08.08.2010 and stated she had lived in her sasural for about 1½ years. Her father and brother stated that she had been living with them for several years without support from the husband, that she had no source of income, and that the husband was earning between Rs. 18,000 and Rs. 30,000 per month as a computer operator in an office at Saharsa. P.W. 4 stated that the husband was a government servant with a salary in the range of Rs. 20,000–25,000 and that the wife had no income.
The husband examined himself as O.P.W. 1 and his father as O.P.W. 2, but produced no documentary evidence of his income. He reiterated his allegations about forcible marriage, low income and denial of paternity. In cross-examination, he claimed there was no salary slip prepared for him though payment was made initially by bank draft and then into his account. He admitted his father had cultivable land. Strikingly, he stated he did not even know the name of his daughter or the school where she studied. His father supported the claim of low salary but, when confronted with a marriage photograph, could not support the allegation of a forced marriage by police.
In the High Court, the husband’s counsel pressed several points: that the wife was not a legally wedded wife because the marriage was allegedly forced; that she was living in illicit relationship and thus disqualified from maintenance; that the child was not his biological daughter; that she had left the matrimonial home without sufficient cause; that a decree of divorce had now been passed; and that the quantum of maintenance was excessive in light of his claimed income of Rs. 11,000 per month.
The Court began by setting out Section 125 Cr.P.C. and emphasised that:
• A wife who cannot maintain herself is entitled to maintenance if the husband has sufficient means and neglects or refuses to maintain her.
• The term “wife” includes a divorced wife who has not remarried.
• Legitimate or illegitimate minor children are entitled to maintenance from their father.
The Court also explained, relying on several Supreme Court judgments such as Yamunabai A. Adhav v. Anantrao S. Adhav, Savitaben S. Bhatiya v. State of Gujarat, Kamala v. M.R. Mohan Kumar, Santosh v. Naresh Pal, Dwarika P. Satpathy v. Bidyut Prava Dixit, Balram Yadav v. Fulmaniya Yadav, Ivan Rathinam v. Milan Joseph and others, that:
• Proceedings under Section 125 Cr.P.C. are summary and intended to prevent destitution.
• Strict proof of marriage and paternity, as required in matrimonial proceedings, is not demanded at this stage.
• Findings on marriage and paternity in Section 125 Cr.P.C. proceedings are tentative and subject to final determination by a Civil or Family Court.
On the husband’s denial of marriage, the Court noted that the wife had adduced evidence of marriage as per Hindu rites at a temple without force and, crucially, that the husband himself had filed a divorce petition under Section 13 of the Hindu Marriage Act. A divorce petition can be filed only against a legally wedded spouse. The husband had never filed any petition under Sections 11 or 12 of the Hindu Marriage Act to annul the marriage. The Court held that his plea that the wife was not legally wedded had no substance.
On the argument that the wife, now divorced, was not entitled to maintenance, the Court referred to Explanation (b) to Section 125(1) Cr.P.C., which specifically includes a divorced woman who has not remarried within the meaning of “wife”. There was no case set up that the wife had remarried. The Court held that divorce did not bar her claim for maintenance.
On the allegation of illicit relationship and “living in adultery”, the Court discussed the legal position that living in adultery requires a continuous course of adulterous conduct, not isolated acts. It cited several High Court decisions, noting that “living in adultery” is a serious disqualification but must be pleaded and proved with specific details of time, place and the other person. In this case, the husband had only made a bald allegation that his wife had illicit relations with her brother-in-law, without particulars. He had not even made adultery a ground in his divorce petition, which was instead based on cruelty and desertion. Further, in pleadings he maintained he was willing to keep his wife with him, which would be inconsistent with genuinely believing she was living an adulterous life. The Court held that the husband had failed to prove “living in adultery”, so this defence to maintenance failed.
On the question why the wife was living at her parental home, the Court accepted her explanation that she had been subjected to cruelty and that the husband was in a relationship with another woman, forcing her to leave. A criminal case (Case No. 1711 of 2011) for cruelty was pending before the S.D.J.M., Bhagalpur. Even the divorce court at Munger had rejected the husband’s allegation of desertion by the wife. Therefore, the High Court held she had sufficient reason to live separately, and the husband’s plea that she had left without cause was not made out.
On paternity of the minor daughter, the Court found this to be a key issue. It noted that the child was born on 08.08.2010 during the subsistence of a valid marriage between the husband and wife. Although the child was born 4 months and 10 days after marriage, Section 112 of the Evidence Act clearly provides that a child born during the continuance of a valid marriage is conclusively presumed to be the legitimate child of the husband unless it is shown that the husband and wife had no access to each other when the child could have been conceived.
The Court referred to Supreme Court decisions such as Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, Thatchinamoorthy v. Sivagamy, Sham Lal Alias Kuldip v. Sanjeev Kumar and Goutam Kundu v. State of West Bengal. These decisions emphasise that:
• Law strongly presumes legitimacy of children born during marriage.
• “Access” refers to opportunity for sexual relationship, not actual proof of cohabitation.
• The presumption of legitimacy is conclusive unless clear and strong evidence of non-access is shown.
• The burden to rebut this presumption lies on the person alleging illegitimacy.
Applying these principles, the Court held that the husband had not pleaded or proved non-access at the relevant time. He had not filed any civil or matrimonial case seeking a declaration that the child was not his. His only material was a bare allegation of the wife’s prior relationship with her brother-in-law. This was insufficient to rebut the strong presumption under Section 112 of the Evidence Act.
The Court therefore held that, in law and on facts, the minor daughter must be treated as the legitimate child of the husband and is entitled to maintenance.
On income and quantum of maintenance, the Court noted the contradictions between the husband’s claim of Rs. 11,000 per month and the evidence of prosecution witnesses, supported by a salary slip. The wife’s witnesses consistently stated that the husband’s earnings ranged between Rs. 18,000 and Rs. 30,000 per month as a government employee in Saharsa, and he had not produced salary records despite being in service. The Court accepted that he had a stable government job and that the wife had no source of income.
Considering the income range and the needs of the wife and child, the Court held that Rs. 3,000 per month for the wife and Rs. 2,000 per month for the child, from the date of filing of the petition, was neither excessive nor unreasonable.
In its revisional jurisdiction, the High Court emphasised that it could not re-appreciate evidence to substitute its own findings unless there was perversity or legal error. It found no such perversity or error in the Family Court’s order. Accordingly, it dismissed the criminal revision and upheld the maintenance order.
Finally, the Court clarified that its findings on validity of marriage and paternity were tentative, in line with Section 125 Cr.P.C. jurisprudence, and would be subject to any contrary finding by a competent Civil Court or Family Court. If such a contrary decree is passed, the parties can approach the court under Section 127 Cr.P.C. for alteration of the maintenance order.
Why This Judgment Matters
This judgment is important for wives and children who are abandoned or neglected but face aggressive defences in court.
First, it makes clear that even if a husband later obtains a divorce, his responsibility to maintain his former wife continues under Section 125 Cr.P.C. as long as she has not remarried and cannot maintain herself.
Second, it shows that a husband cannot easily escape responsibility for a child born during marriage by simply alleging that the child is not his. Courts apply a strong legal presumption of legitimacy, and the husband must bring clear and strong evidence of non-access to rebut it.
Third, it clarifies that vague allegations of a wife’s illicit relationship are not enough to deny her maintenance. To say that a wife is “living in adultery”, the husband must provide specific, consistent proof of continuous adulterous conduct. Bald accusations, especially when not even used as a ground in a divorce case, will not be accepted.
Fourth, the judgment reinforces that Section 125 Cr.P.C. is a summary, social-welfare provision. Courts will look at practical realities—a woman with no income and a child to support, versus a husband in government service with regular earnings—and decide maintenance based on need and capacity, rather than technicalities.
For ordinary readers, this decision from the Patna High Court offers assurance that the law can protect wives and minor children from destitution, even where the husband disputes marriage, questions paternity, or later obtains a divorce.
Legal Issues and Answers
- Issue: Is the wife entitled to maintenance under Section 125 Cr.P.C. when the husband disputes the validity of marriage and later obtains a divorce decree?
Answer: Yes. The Court held that the marriage was valid; the husband himself had sought divorce under Section 13 of the Hindu Marriage Act. Under Explanation (b) to Section 125(1) Cr.P.C., even a divorced wife who has not remarried is entitled to maintenance if she cannot maintain herself and the husband has sufficient means. - Issue: Can the husband avoid paying maintenance to the minor daughter on the ground that she was born about 4½ months after marriage and is allegedly not his child?
Answer: No. Invoking Section 112 of the Evidence Act and Supreme Court precedents, the Court held that a child born during the continuance of a valid marriage is conclusively presumed legitimate unless non-access is proved. The husband failed to plead or prove non-access and had not sought any declaratory relief. The daughter was therefore treated as his legitimate child entitled to maintenance. - Issue: Does an unproved allegation that the wife is in an illicit relationship with another man bar her claim to maintenance as “living in adultery”?
Answer: No. The Court held that “living in adultery” requires specific and continuous adulterous conduct, properly pleaded and proved. Here, only bald allegations without details or corroboration were made, and adultery was not even taken as a ground in the divorce petition. The wife’s right to maintenance was not barred.
Cases Cited by the Court
- Yamunabai A. Adhav v. Anantrao S. Adhav, (1988) 1 SCC 530
- Savitaben S. Bhatiya v. State of Gujarat, (2005) 3 SCC 636
- Kamala v. M.R. Mohan Kumar, (2019) 11 SCC 491
- Santosh v. Naresh Pal, (1998) 8 SCC 447
- Ivan Rathinam v. Milan Joseph, AIRONLINE 2025 SC 57
- Balram Yadav v. Fulmaniya Yadav, (2016) 13 SCC 308
- Dwarika P. Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675
- Pravati Rani Sahoo v. Bishnupada Sahoo, (2002) 10 SCC 510
- Hitesh Deka v. Jinu Deka, 2025 SCC OnLine Gau 259
- Sukhdev Pakharwal v. Rekha Okhale, 2018 SCC OnLine MP 1687
- Ashok v. Anita, 2011 SCC OnLine MP 2249
- Sandha v. Narayanan, 1999 SCC OnLine Ker 64
- Pandurang Barku Nathe v. Leela Pandurang Nathe & Anr., 1997 SCC OnLine Bom 264
- Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773
- Thatchinamoorthy v. Sivagamy, 2010 (2) MWN (Civil) 337
- Sham Lal Alias Kuldip v. Sanjeev Kumar & Ors., (2009) 12 SCC 454
- Goutam Kundu v. State of West Bengal & Anr., (1993) 3 SCC 418
Case Details
Case Number: Criminal Revision No. 262 of 2020
Arising out of: Misc. Case No. 96 of 2012 under Section 125 Cr.P.C.; P.S. Case No. – (Year 0), Thana – (not specified), District – Bhagalpur (as per cause title heading)
Case Title: Avadh Kishore Sah @ Awadhesh Sah v. The State of Bihar & Ors.
Citation: 2025 (2) PLJR 922
Coram: Hon’ble Mr. Justice Jitendra Kumar
Date of Judgment: 07.05.2025 (CAV Judgment; CAV date 01.05.2025)
Court: High Court of Judicature at Patna
Advocates:
- For the Petitioner (husband): 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 Opposite Party Nos. 2 and 3 (wife and minor daughter): Mr. Sanjeev Kumar Mishra, Sr. Advocate; Ms. Manini Jaiswal, Advocate; Mr. Binay Krishna, Advocate; Mr. Manas Rajdeep, Advocate
Nature of the Case: Criminal revision against an order of maintenance passed by the Principal Judge, Family Court, Bhagalpur under Section 125 Cr.P.C.
Link to Judgment: https://patnahighcourt.gov.in/viewjudgment/MTUjMTQ2OTcjMjAyMyMxI04=-qW1F24zyguU=
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