Baggu Singh vs Chhindo and Pala Singh

B.S. Yadav, J.—The facts leading to this petition under section 482, Criminal Procedure Code, are that Smt. Chhindo respondent on her own behalf and on behalf of her minor son Pala Singh (respondent No.2) had filed an application under section 125 of the Code of Criminal Procedure (for short the Code) against her husband i.e. the present petitioner Baggu Singh for the grant of maintenance allowance to both of them.

According to the allegations in the said application, the marriage between Smt. Chhindo and the petitioner took place on the 13th August, 1976. They cohabited as husband and wife for about 1 1/2 years and Pala Singh was born. However, the petitioner commended demanding more dowry. When she was unable to meet his demands, he started maltreating her and ultimately turned her out of his house with the minor son and since then she was residing with her parents. Her paretns requested the petitioner to keep and mainatain her but he refused to do so. She had no means to support herself.

The petitioner Baggu Singh admitted the marriage but denied the other allegations. He pleaded that Smt. Chhindo was pregnant at the time of marriage and when the fact came to his knowledge, she left his house of her own accord. It was further alleged that on 10th December, 1980 the parents of the parties had agreed before the Panchayat that Smt. Chhindo and her husband would live separately and both were free to marry again and since then she was residing separately from him of her own free will.

The learned Judicial Magistate,Ist Class, Ferozepur, who tried the application of Smt. Chhindo, believed the evidence led by her to the effect that she had been deserted by her husban. During evidence the husband had proved a writing, Exhibit R.1 which was signed by the fathers of the parties to the marriage and some other respectables of the llaqa. This writing was exectuted on the 10th December, 1980. According to this writing,the husband''s family had returned all the dowry articles received by them at the time of marriage with Smt. Chhindo. It was also decided by the Panchayat that the son (Pala Singh) would remain with his mother (i.e. Smt. Chhindo and from that date of parties (i.e. Smi Chhindo and Baggu Singh) would be deemed to be divorced and were free to marry again. The learned trial Court did not Act upon that writing (Exhibit R.1) on the ground that it did not formally dissove the marriage. Consequently the said Court accepted the application of Smt. Chhindo and awarded Rs. 100/ p.m. as maintenance to her and Rs. 50 p.m. to Pala Singh.

Feeling aggrieved, Baggu Signh filed revision petition which was heard learned Additional Sessions Judge, Ferozepur. He also did not Act upon the writing Exhibit R.1 on the ground that it was not signed by the parties to the marriage. Consequently he dismissed the revision petition filed by the husband. The husband has now come to this Court for quashing of the above orders.

The learned counsel for the respondent (Smt. Chhindo and Pala Singh) has realised a preliminary objection to the effect that the second revision by the same party is barred under Section 397(3) of the Code and the petitioner cannot circumvent the express bar by invoking Section 482 of the Code for quashing the impugned orders. In support of his contention he has cited Shariffuddin Haji Noor Baksh v. State, AIR 1977 Cr. L.J. 1054 where it was remarked:

"This petition referred under Section 482 of the Code of Criminal procedure is directed against the order made by an Additional Sessions Judge, Delhi, on 25th of November, 1975, by which he disposed of Criminal Revision No.2 of 1975. The disposal by the Additional Sessions Judge was of a Criminal Revision Petition within the purview of Section 397 of aforesaid Code, Subsection (3) in that provision is:

(3) If an application under this section has been made by any sc 70 no further application by the same person shall be entertained by the other of them."

There is a statotary bar in subsection(3) of Section 397 of the Code of Criminal Procedure against any revision petition being preferred by the same person, where a revision petition preferred by him has been disposed of either by the High Court or the Sessions Judge. The disposal of either by the revision petition by either of the said Courts becomes final in view of Section 397(1) of the code."

To meet the above argument, learned counsel for the petitioner has cited Raj Kapur and others v. State and others, 1981 Chandigarh Law Reporter 226. In that case the question that arose for determination was whether the bar contained in Section 397(2) of the Code affected the amplitude of inherent powers of the High Court under Section 482 of the Code. Therein their lordship of the Supreme Court remarked:

"The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Sectioln 397 overlaps. The opening words of Section 482 contradict this contention because nothing in the Code, not even S. 397 can effect the amplitude of the inherent power prescribed in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law; when a specifc provision is made; easy report to inherent power is not right except under compellign circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart from specific power under the same code. In Madhu Limaye''s case (A.I.R. 1978 S.C.47) this Court has exhaustively and,if I may so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive is should not subvert legal interdicts written into the same Code. Such for instance, in Section 97(2). Apparent conflict may arise in some situations between the two provisions and a happy solution:

"Would be to say that the bar provided in subsection (2) of Section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revisionin relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."

In short there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinay situation excites the court''s jurisdiction. The limitation is self restraint nothing more. The policy of the law is clear that interlocutory order pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. As the other extreme of inherent power, if glaring injustice stares the court in the face. In between is a tertium cuid, as Untwalia, J., has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case fails under the category where the accused complain of harassment through the Court''s process. Can be state that in this third category the inherent power can be exercised? In the words of Untwalia, J.

"The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in appropriate case under its inherent power. The present case undoubtedly fails for exercise of the power of the High Court in accordance with Section 482 of 1973 Code, even assuming although not accepting that invoking the revisional power of the High Court is impermissible."

I am therefore, clea in my mind that the inherent power is not rebuffed in the case situation before us"

I am of the opinion that in the present case, there has been miscarriage of justice and hence it becomes necessary for this Court to invoke inherent power under Section 482 of the Code.

The husband, in defence to Smt. Chhindo''s application, had pleaded that she was residing separately of her own free will. In support of his stand he had produced writing Exhibit R.1 which was signed by the father of the parties to the marriage and by other respectables. Both the learned Courts below have not held this document as forged. The husband has led suffiecient evidence to prove the due execution of this document by his father as well as the father of his wife. This document was attested by some other respectables of the village of the husband and of other villages. The relevant portions of the document have already been noticed above. This document is a sort of settlement arrived at between these two families in a gathering of respectables of the ilaqa. It is also to be noted that RW 4 Fauja Singh father of the husband appeared in the witnessbox Smt. Chhindo''s father did not dare to do so, perhaps on account of fear of being confronted with this document. this document cannot be ignored merely on the ground that it is not signed by Smt. Chhindo or her husband Baggu Singh., In Indian Society it is well known that marriage settlements are made by the parents of the spouses. The document, Exhibit R.1 goes to the extent of reciting that from the date of the execution of that document, both the parties (that is Smt. Chhindo and her husband) were deemed to be divorced and were free to marry again. It is not the case of Smt. Chhindo that after the execution of the document she or her parents made any attempt to pursuade Baggu Singh to take her back. It is also not her case that she had repudiated the above settlement. She, in fact, denies that any such settlement was arrived. In view of the convincing evidence led by the husband, here denial cannot be given any weight. Moreover, it is not necessary that there should be a written document to prove that the parties to the marriage are living separately by mutual consent That fact can be inferred from other factors.

In view of the above circumstances, learned counsel for the petitioner is right in saying that the parties to the marriage are living separately by mutual consents, therefore, and the wife is not entitled to maintenance. He has placed reliance of Section 125(4) which reads as follows:

"S. 125(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent."

The above argument has force. The circumstances show that Smt. Chhindo and Baggu Singh petitioner are living separately by mutual consent. Therefore, as Smt. Chhindo is living separately by mutual consent, she is not entitled to any maintenance.

However, the order regarding Pala Singh''s maintenance stands on a different footing. He is still a minor. The petitioner is bound to support him. Therefore, the order so far it relates to the grant of maintenance to Pala Singh, is legal.

For the foregoing reasons, the impugned orders, so far as there relate to the grant of maintenance to Smt. Chhindo are quashed the petition remaining parts of the orders concerning Pala Singh are held as valid. This is disposed of accordingly.