Daya Singh vs Smt. Bishan Kaur and Others

Harphul Singh Brar, J.—The learned Counsel for the petitioner has assailed the order dated 28.5.1997 of the Judicial Magistrate, First Class, Jagadhri.

The above order was passed by the learned Magistrate u/s 125(3) of the Code of Criminal Procedure only in order to execute the order already passed on 14.5.1993 allowing maintenance to the respondent-wife u/s 125, Criminal Procedure Code.

Learned Counsel for the petitioner has challenged the order mainly on the ground that the petitioner-husband had offered to maintain his wife provided she lived with him and allowed him to reside in his house. He has drawn my attention to Annexure P-5, a copy of the affidavit filed with this petition.

According to the learned Counsel, the petitioner had filed this affidavit before the Judicial Magistrate, First Class in which an offer was made to maintain his wife but the learned Magistrate did not take into consideration this offer of the petitioner-husband. He, thus, contends that the order of the Magistrate is liable to be quashed as it has violated the Second Proviso of Section 125(3) of the Code of Criminal Procedure.

Section 125(3) Second Proviso reads as under :

"Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."

Notice was given to the respondents.

Learned Counsel for respondent Nos. 1 to 4 took time to verify as to whether Annexure P-5 i.e. the affidavit referred to by petitioner was at all filed before the learned Judicial Magistrate and as to whether it was a part and parcel of the file of the Magistrate when he decided the application u/s 125(3) of the Code of Criminal Procedure.

Learned Counsel for respondent Nos. 1to 4 filed a Criminal Misc. Application No. 24691 of 1997 vide which a prayer was made to place on record copies of the orders dated 24.5.1997 and 28.5.1997 as Annexures R-1 and R-2 respectively with the petition.

The Criminal Misc. Application was allowed and thus, orders dated 24.5.1997 and 28.5.1997 were ordered to be placed on record as Annexures R-1 and R-2.

After going through these orders, the contention of the learned Counsel for the petitioner that the offer was made by the petitioner vide his affidavit dated 28.5.1997 annexed as Annexure P-5 with the petition before the learned Magistrate and the learned Magistrate refused to consider the same is incorrect as it is not based on facts.

Vide order dated 24.5.1997, the learned Judicial Magistrate, First Class, Jagadhri, held as under :

"Argument on the application u/s 125(3) heard. For orders to come up on 28.5.1997."

Vide order dated 28.5.1997, the same learned Judicial Magistrate has ordered as under:

"Vide my separate order of even date the application u/s 125(3) allowed. Now to come up on 14.6.1997 for payment of maintenance allowance.

That today it was fixed for order on the application u/s 125(3), Criminal Procedure Code. That the order has been dictated and pronounced and at this stage the learned Counsel for the respondent filed an affidavit on behalf of respondent dated 28.5.1997 and the said affidavit is not acceptable as the order has already been pronounced. To come up on 14.6.1997, the date already fixed."

It is, thus, clearly shown that neither the petitioner had made any offer nor any affidavit to that effect was filed before the Magistrate before he pronounced his order allowing the application of the respondent-wife u/s 125(3) of Criminal Procedure Code.

In these circumstances, there is no merit in this revision petition which is dismissed.