JUDGMENT

RAJEEV RANJAN PRASAD, J.:–

Heard learned counsel for the petitioner and learned counsel for the opposite party.

2. Petitioner, in the present case, is aggrieved by and dissatisfied with the order dated 08.12.2017 passed in Maintenance Case No. 296/2013 passed by learned Principal Judge, Family Court, Purnea whereby and whereunder the learned Family Court has been pleased to dismiss the maintenance case.

3. Learned counsel for the petitioner submits that the impugned order suffers from illegality and infirmity inasmuch as the learned Principal Judge, Family Court has refused to allow any amount of maintenance to the applicant–wife on the solitary ground that she has not come herself to depose in course of evidence and therefore the deposition of the witnesses in her support would not carry any weight.

4. Learned counsel submits that on a bare perusal of the application under Section 125 Cr.P.C. (Annexure ‘1’), it would appear that the said application was duly supported by an affidavit.

5. In response thereto the husband– opposite party admitted in his reply that he had performed a second marriage with a widow but his allegation was that the applicant–wife had refused to serve the old aged parents of the husband and had been living in her Naihar. This allegation of the husband–opposite party was made to oppose the case of the applicant–wife that she had been in fact ousted from the matrimonial house after her husband brought a Sautan in the matrimonial home and she was being tortured by her husband and the Sautan.

6. Learned counsel further submits that admittedly the husband–opposite party is working as a compounder and is employed in the clinic of a private physician doctor. It is his submission that the applicant has got two minor children. It is lastly submitted that in support of the case of the applicant three witnesses had been examined and because of unawareness and lack of legal advise she was not examined in course of evidence. It is, however, his submission that a proceeding under Section 125 Cr.P.C. is a summary proceeding and on the face of the statement of the applicant duly supported by her affidavit and the deposition of the three witnesses, the case of the petitioner could not have been rejected on the solitary ground that she had not come herself to depose.

7. Learned counsel further submits that a provision for maintenance under Section 125 Cr.P.C. has been brought in the statute book to take care of the neglected women having no income to maintain herself. It is based on the principle of equity as well. Those women facing hardship in her life are provided some succor in a summary proceeding. According to him, perhaps, the learned Principal Judge, Family Court, Purnea has failed to take note of the object and purpose behind providing such a provision under the Cr.P.C.

8. This application has been contested by learned counsel for the opposite party no. 2. It is submitted that the learned Family Court has taken note of the stand of the opposite party as disclosed in his show cause. It is stated that the wife had taken divorce and she is residing separately and she had been earning her livelihood by doing some daily wages work.

Consideration

9. Having heard learned counsel for the petitioner – opposite party and on perusal of the records, this Court finds that the application of the applicant – wife has been rejected mainly on the ground that the applicant – wife had not come to depose in course of evidence. The learned court has taken note of the stand of the opposite party as disclosed in his show cause but could not appreciate that the applicant had also filed her application duly supported by an affidavit. The court could not appreciate that a proceeding under Section 125 Cr.P.C. is a summary proceeding and in such proceeding the case is not to be conducted by way of a long drawn trial. In appropriate cases evidence may be led by way of affidavit because under the Code of Civil Procedure one of the modes of le