A wife who has re-married is statutorily disqualified from claiming maintenance. When an allegation of re-marriage is supported by evidence and remains unrebutted by the respondent, the court is justified in setting aside the maintenance order.

JUDGMENT :

M. Zothankhuma, J.

Heard Ms. S. B. Choudhury, learned counsel for the petitioner/husband. Also heard Ms. K. Phukan, learned Legal Aid counsel for the respondent No. 2/wife and Ms. B. Bhuyan, learned Additional Public Prosecutor for the State/respondent No. 1. No one appears for the respondent No. 3, who is the alleged second husband of the respondent No. 2.

2. The petitioner/husband has put to challenge the impugned judgment and order dated 19.11.2010 passed by the Court of the Principal Judge, Family Court, Kamrup, Guwahati, in F.C. (Crl.) No. 32/2008, granting maintenance of Rs. 1,500/- per month to the respondent No. 2/wife under Section 125 of the Cr.P.C., on the ground that the respondent No. 2/wife has married her second husband, i.e., respondent No. 3.

3. On a query raised by us to Ms. K. Phukan, learned Legal Aid counsel for the respondent No. 2, as to whether the respondent No. 2 had married the respondent No. 3, the Legal Aid counsel submits that she has not been able to communicate with the respondent No. 2, as she does not know where the respondent No. 2 resides, besides not having been provided the mobile number of the respondent No. 2. Though the appellant’s counsel has prayed for adjournment on the ground that she has not been able to trace her file, we are inclined to dispose of the appeal due to its long pendency and the simple issue involved in this appeal.

4. The issue that has to be decided in this case is whether the respondent No. 2/wife has married the respondent No. 3. Section 125 of the Cr.P.C provides that if any person having sufficient means, neglects or refuses to maintain his wife, who is unable to maintain herself, a Magistrate of the 1^st Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or child. The explanation to of the Cr.P.C provides that a wife does not include a person who has re-married. Thus, if the respondent No. 2 had re-married the respondent No. 3, the question of payment of maintenance under of the Cr.P.C could not arise.

5. In the present case, it is an admitted fact that the petitioner/husband and the respondent No. 2 did not have a child during their marriage or afterward also. The only problem that arises is with regard to whether there has been service of notice upon the respondent No. 2 and respondent No. 3. In this regard, the orders passed by this Court on 18.01.2012, 18.04.2012 and 13.08.2012 are reproduced herein below as follows:

“18.01.2012

Heard Mr.S.B.Choudhury, learned counsel for the petitioner. None appears for the respondent. It has been stated by the learned counsel for the petitioner that notice has been duly served on respondent No. 2 as indicated in the office Note. Office Note indicates that one Mr. M.Rahman, leanred counsel had entered appearance on behalf of respondent No. 2 by filing vakalatnama. He has not appeared today. In respect of respondent No. 3, the petitioner took steps twice, first on 1.6.11 which was returned unserved. Second step was taken on 5.8.11 in which it has been shown that the said notice was received on behalf of respondent No 3 by respondent No.2 i.e. Mrs. Amina Begum.

It has been stated by the learned counsel for the petitioner that after the impugned order dated 19.11.10 was passed, the said respondent No. 2 got married to respondent No. 3 and as such, she is not entitled to get any maintenance. All these aspects would be considered at the time hearing. However, considering the facts as stated above, until further orders, the impugned order dated 1