Gh.Mohammad Malla vs Halima

It is unfortunate that the file was misplaced. However, on having been traced out and from the perusal of the file and recollecting the arguments

advanced in this revision petition, I after appreciating the same do find that the petitioner had challenged the order dated 3181991 passed by

Judicial Magistrate (1st. Additional Munsiff, Srinagar) on an application under section 488 (4) Cr.P.C, before the Chief Judicial Magistrate,

Srinagar, for offer of maintaining the n onapplicant Mst. Halima.

It may be noted that the provisions of Section 488 Cr.P.C. have been enacted for safeguard of destitute women and children who are not being

maintained by the personnel having sufficient means, neglect to maintain them as their wives or legitimate children. These provisions have been

enacted only to safeguard the negligence for maintenance/refusal to maintain the legally wedded wife or her children. The provisions further

envisage that at the time of enforcement of order or even during the pendency of proceedings, the husband can make offer to maintain his wife and

the Magistrate is called upon to consider such offer and if the Magistrate is satisfied that there are just grounds for such offer, he may allow the

application and consider the offer made by the husband bonafidely.

In this backdrop, the petitioner in this revision petition, nonapplicant before the Magistrate had made an application for offer. This application of

offer was considered by the Magistrate after having obtained objections from the petitioner Mst. Halima.

Mst. Halima had submitted in her objections before the trial Magistrate that the offer made by the husband is not bonafide. The petitioner Mst.

Halima has stated before the court that she is feeling lot of insecurity at the hands of nonapplicant who repeatedly declares that he will divorce her,

as such, she has lost her faith in the nonapplicant, and cannot trust him any more. The nonapplicant, as observed by the learned Magistrate has

placed offer before the applicant after a period of ten years, which only convinces her that the nonapplicant in order to avoid the payment of

maintenance, has filed the application of offer to defeat the order/maintenance application. She has further submitted before the court that in case

she accepts the offer and resumes her matrimonial relationship with the nonapplicant, the nonapplicant will again turn her out after only few days

and there is every likelihood that she will again conceive and that will be another burden as there are already two children born out of wedlock'

who are also deprived of the maintenance allowance by the nonapplicant. The applicant has submitted before the learned Magistrate that the

nonapplicant had previously given in writing that he will take the applicant to matrimonial home and look after her like good wife, but the

nonapplicant never bound himself to the terms and conditions laid down in the written declaration. So on the previous experience, she declined the

offer.

The learned Magistrate after considering all the pros and cones of the application and the bonafides shown by the petitioner has come to the

conclusion that:

................It is abundantly clear that the applicant has lost faith in nonapplicant who has as per her statement backed out from every promise

which he made before many baradari meetings and by written declarations. If it is believed that the nonapplicant is really interested in settling down

with the applicant, why he did not file this application of offer in the beginning of the proceedings under section 488 which are going on in this court

right from the year 1988. If the nonapplicant would have been really interested in compounding the matter with the applicant and to rehabilitate his

family, he should have definitely moved this application of offer at the beginning of the proceedings. But the nonapplicant has not done so which

makes it abundantly clear that the offer is made only at the fag end of proceedings under section 488 with malafide intentions to defeat the

proceedings under Section 488 and to deprive the applicant from the protection of statutory law enumerated under section 488..................."".

The learned Magistrate has further observed:

.........that the nonapplicant is not really interested in taking back the matrimonial responsibility and has filed his application of offer only when his

evidence was closed down and the file was fixed for recording his own statement

So the learned Magistrate has dismissed the application of offer and directed that let the case come up for recording statement of nonapplicant.

Against this order passed by learned Magistrate on 3181991, a revision came to be filed by in the court of learned Chief Judicial Magistrate,

Srinagar who after hearing the parties and perusal of the file had also came to the conclusion that the order and the finding arrived at by the trial

Magistrate is in no way improper, irregular or is suffering from jurisdictional defect. The defence taken by the petitioner in terms of the petition

dismissed, can be taken in the basic petition on the basis of evidence adduced by the parties and after weighment and assessment of the entire

evidence adduced by the parties. The learned Chief Judicial Magistrate has also while disposing of the revision petition observed that the petitioner

is not debarred to raise such defence in the basic petition at the final stage, for which the file appears to have almost matured.

The impugned order dated 3181991, has been maintained by the learned CJM Srinagar on two counts;

Firstly, that the order is based on substantial reasoning and does not require any interference; and

Secondly that the order being interlocutory falling within the provisions of Section 435 (4A) Cr.P.C. as because under the said order the rights of

the parties have not been determined finally and on this count also, the revision petition merits its dismissal, even if the order impugned may not

appear to be proper and legal.

The petitioner feeling aggrieved of the orders passed by the learned Magistrate as well as by Chief Judicial Magistrate, Srinagar in the revision

petition, has challenged the said orders by this revision petition before me.

It is an admitted fact that revision against revision will not lie because the High

Court or any Sessions Judge or Chief Judicial Magistrate, have got concurrent jurisdiction for calling for records and examine the records of any

proceedings before any inferior criminal court situate in its jurisdiction for purposes of satisfying itself or himself as to the correctness, legality or

propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court......but the High

Court has inherent powers also to examine and call for the records by itself or which has been reported for orders or otherwise comes to its

knowledge, the High Court may in its discretion, exercise any of the powers conferred on a Court of appeal or a Court of Revision and under

these powers, this court can peruse and see to the legality or correctness or procedural irregularities, and in case the court comes to the

conclusion, it will direct accordingly by quashing the order or pass appropriate orders.

Thus under inherent powers of this court, even I do not find any illegality having been committed by the trial Magistrate or the revisional court

in disposing of the application/revision petition. However, the legal claims which will accrue from the plea of offer are available to the petitioner to

be projected at the time when the matter is being considered by the court below finally on merits.

For the foregoing reasons, I do not find no force in this revision petition, which is accordingly dismissed in limine. Inform the courts.