Harbans Lal vs Sito Devi

A.L. Vaidya, J.—The present petition has been preferred u/s 482 Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing the order dated 9th June, 1994 passed by the Sessions Judge, Hamirpur, whereby the order dated 24.6.93 passed by the Judicial Magistrate Ist Class, Hamirpur was maintained.

The present Petitioner and the Respondent, admittedly, are the husband and wife and their marriage was solemnised about 21 years back, when the present Respondent preferred a petition u/s 125 of the Code of Criminal Procedure in the year 1991. Two children were born out of the said wed-lock, who have since died. The present Petitioner was serving in military, but he was discharged on medical ground in the year 1974. It has been the case of the wife that the husband was getting pension of Rs. 700/- to Rs. 800/- per month. According to the wife, the husband contracted a second marriage after about six years of his first marriage with the present Respondent. As, she had no source of livelihood, she prayed for the grant of Rs. 400/- per month as monthly maintenance. According to her, the husband was owning a truck and his monthly income was Rs. 5,000/- to Rs. 6,000/-.

This petition was contested by the husband, who denied the averments made in the petition, but, however, admitted to have contracted a second marriage and that too with the consent of the present Respondent, who according to Petitioner had taken ''Sanyas'' and was leading that life. It was further pleaded that on account of his injury, he was discharged from the military service and at that time the present Respondent did not serve him at all. It was averred in the reply that the Petitioner was earning about Rs. 2,000/- per month from some ladies stitching training centre opened by her. He pleaded that he was receiving about Rs. 500/- as monthly pension.

The trial Magistrate accepted the petition preferred u/s 125 of Code of Criminal Procedure and directed the husband to pay maintenance allowance of Rs. 350/- per month to the Petitioner from the date of filing of the petition i.e. 7.11.1991.

The husband assailed the aforesaid order in a Revision Petition preferred before the learned Sessions Judge, who, after hearing the parties, dis-allowed the Revision Petition and maintained the order passed by the trial Magistrate.

I have heard the learned Counsel for the parties and have also gone through the records.

There is no dispute to the proposition that order of the trial Magistrate could be assailed by the husband by preferring a Revision Petition u/s 397 of Code of Criminal Procedure either before the Sessions Judge or before this Court. The husband selected the forum of learned Sessions Judge in this behalf. Sub-section (3) of Section 397 Code of Criminal Procedure gives finality to such an order passed by the learned Sessions Judge or by the High Court in a Revision Petition preferred by the parties concerned.

The present petition has been preferred u/s 482 of the Code of Criminal Procedure, which is an independent provision and has nothing to do with the provision u/s 397 Code of Criminal Procedure, which has also its independent character. u/s 482 of Code of Criminal Procedure, under the inherent powers, this Court can make such orders as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Unless and until, the order under reference passed by the learned Sessions Judge comes within the aforesaid purview of Section 482 Code of Criminal Procedure, this Court will not ordinarily interfere with the order passed by the learned Sessions Judge.

The learned Counsel for the Petitioner has in a way argued the petition, as if this Court is to decide the entire matter after appreciating the entire evidence as an Appellate Court, I think, such is not the intention and purpose of Section 482 of the Code of Criminal Procedure. Moreover, the present case, otherwise, does not come within the ambit of Section 482 Code of Criminal Procedure, especially, when on the basis of the circumstances present in this case, there does not appear to be any occasion to invoke these inherent powers, inasmuch as, it is not so required to secure the ends of justice or even to prevent the abuse of the process of any court. The courts below have appreciated the evidence and law in a proper and legal manner, so as to give relief to the needy wife.

Section 125 of the Code of Criminal Procedure has been enacted with the object of enabling deserted wives, helpless and deserted children and destitute parents to secure this much needed relief. These are special provisions designed for the benefit or protection of a class of women. It is a speedy remedy to be availed of by the persons, who come within the ambit of the aforesaid provisions. In the present case, the husband has admitted to have contracted second marriage after his first marriage with the present Respondent.

u/s 125(3) Code of Criminal Procedure, explanation reads as under:

If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

In the present case, on the basis of the aforesaid provisions, the present Respondent''s refusal to reside with the husband was not only justified but legal also. It has been contended on behalf of the husband that the wife had renounced the world, and in this behalf, some letters alleged to have been written by the wife to the husband had been referred. Those letters only indicated that the wife was following some religious path, but had been continuously writing to her husband. It may not be out of place to mention here that on one hand, the husband is making the allegations that the wife had renounced the world and on the other hand his allegations were that she was running some stitching training centre. Any way, the fact remains that renunciation by the wife and the fact of her becoming "Sanyasi" has not been established, as to lead a strictly religious life will not make a person ''Sanyasi''. In this case, she has all the time writing letters to ''the Petitioner-husband.

The main controversy between the parties in the aforesaid background remains with respect to the quantum of maintenance to be awarded in favour of the wife. The husband in his reply averred that he was getting Rs. 500/- as pension. During his statement on oath before the trial magistrate, he deposed that he was getting Rs. 125/- as monthly pension. During the course of arguments in the present petition, it has been contended on behalf of the Petitioner that .he was receiving Rs. 650/- per month as pension. However, no document has been brought on record as to what was the pension the Petitioner was receiving at present. It is in evidence that the Petitioner''s second wife was earning about rupees two thousand per month, who was employed.

Some evidence has been brought on record that the wife was given some subsidy to purchase some machines, which is nothing, but a few hundred of rupees. This subsidy has been given to her under the I.R.D.P. Scheme or under the Antodaya Scheme, which covered the poorest o� the poor. This aspect of the matter has been considered by the trial Magistrate and by the learned Sessions Judge while lassessing the maintenance allowance/amount. The husband was the driver, but there is nothing on record to suggest that he was permanently disabled. Otherwise as observed by the courts below, he was having a good physique. He was present in this Court also for the purpose of re-conciliation which were not fruitful. He appeared to be normal, though might be suffering physically, which aspect of the matter was not brought on record as to what was the effect of that suffering. Any way, the fact remains that the husband was getting pension and had contracted the second marriage. He was at present living with the second wife. Admittedly, the Respondent was the first wife and she has every right to refuse to live with her husband, which she had so selected in the present proceedings.

On the basis of the aforesaid circumstances, I do not find any illegality or abuse of process in the order passed by the courts below by which they have rightly saved a deserted wife from financial crises. The aforesaid circumstances do not require any interference of this Court u/s 482 of the Code of Criminal Procedure, more so, when the 1622 orders under reference have been passed to secure the ends of justice in favour of the deserted lady and interference, if any, would take away that right legally found in favour of the lady.

In view of the foregoing reasons, I do not find any merit in the present petition and accordingly dismiss the same with costs, which is assessed at Rs. 1,000/-.