Ajaypal Singh Yadav vs Smt. Rani Yadav

M.K. Mudgal, J.—With the consent of both the parties, the matter is finally heard.

This petition has been preferred by the petitioner invoking extra ordinary jurisdiction of this Court u/s 482 of Code of Criminal Procedure for setting side the order dated 11.12.2008 passed by ASJ (Special Judge), Guna in Cr. Revision No. 325 of 2008 confirming the order dated 1.11.2008 passed by JMFC, Guna in Cr. Case No. 36 of 2006 whereby, allowing the application u/s 125 of Cr.P.C., the petitioner was directed to pay Rs. 2000/- per month as maintenance to the respondent from 26.7.2006.

The admitted facts of the case are that the parties got married on 12.3.2006 and since the date of filing the application dated 26.7.2006 for maintenance, they have been living separately.

The facts in nut-shell giving rise to this petition are that respondent-wife filed one application for maintenance in the Court of JMFC, Guna u/s 125 of Cr.P.C. stating that soon after her marriage, petitioner-husband and his family members demanded dowry and also started harassing her. They also beat her up and threw her out of the house and since then, she has been residing separately from her husband. She even made several efforts to live with her husband, but the husband/petitioner and his family refused to keep the respondent/wife. She was having no means to maintain herself and on the other hand, the petitioner was having 100 Bigha irrigated agricultural land and tractor trolley and other machinery out of which, he earns Rs. 6 to 7 lacs per year, hence, the petitioner be directed to pay Rs. 5000/- per month as maintenance.

Being aggrieved by the order passed by learned trial Court, the petitioner-husband filed a revision petition before the revisional court. In the said revision, the order of trial Court was confirmed by the revisional Court giving rise to this petition.

Learned counsel for the petitioner submits that the respondent-wife is residing separately on her own accord from the petitioner and has deserted him without any sufficient reason, hence, she is not entitled to get any maintenance from the petitioner. Even the financial status of the petitioner has been wrongly assessed by learned courts below in awarding the amount of maintenance in favour of respondent-wife. On the other hand, the wife being educated and posted in Barodia Primary School as a Teacher earns Rs. 3000/- per month as salary. The petitioner being farmer, has no definite source of income. Hence, the amount so awarded by learned courts below towards maintenance is excessive and should be decreased. Hence, the impugned order passed by learned courts below may either be set-aside or may be modified as indicated hereinabove.

Counsel for the respondent opposing the submissions made on behalf of the petitioner has contended that both the courts below have arrived at the conclusion that the petitioner-husband got married twice without seeking divorce from the respondent-wife and this is a sufficient ground for the respondent-wife to live separately from her husband. The counsel has further argued that the findings recorded by the courts below having based on proper appreciation of evidence do not require any interference by this Court u/s 482 of Cr.P.C. as second revision is barred u/s 397(3) of Cr.P.C., hence, Section 482 of Cr.P.C. cannot be resorted to nullify the provision of Section 397(3) of the Cr.P.C.

Arguments were considered and record was perused. The learned trial court has held in para 10 of the judgment that the petitioner-husband got married to Radha in a second marriage. The said findings have been confirmed by the revisional court in para 11 of the impugned order. Indisputably, the petitioner-husband has not sought divorce from the respondent-wife. Therefore, respondent-wife has sufficient reason to live separately from the petitioner-husband.

As far as the maintenance allowance is concerned, the said amount is not excessive as both the courts having considered the recorded evidence have given the said findings which are apt and just. Moreover, this court u/s 482 of Cr.P.C. has limited scope for interference in the impugned order as second revision is barred u/s 397(3) of Cr.P.C. In this regard, the Hon''ble Apex Court has held in para 3 of the judgment in the case of Amar Nath and Others Vs. State of Haryana and Another, as under:

Section 482 contains, inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of ss. 397 and 482 would lead to the conclusion that, where a particular order is expressly barred under s. 397(2) and cannot be the subject of revision by the High Court, the provisions of s. 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.

Keeping in view the aforesaid facts and circumstances, it is concluded that the revision being merit-less and devoid of substance, is hereby dismissed.