Lal Singh vs Ajudhya Devi

A.L. Vaidya, J.—The present petition has been preferred u/s 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India with the prayer that the order dated 23.9.94 passed by the learned Sessions Judge, Bilaspur in Criminal Revision Petition No. 14/92, be set-aside.

Smt. Ajudhya Devi, Respondent preferred a petition u/s 125 of the Code of Criminal Procedure for the grant of Rs. 500/- per month as maintenance allowance against her husband Sh. Lal Singh, the present Petitioner. It was pleaded by the lady that she was the legally wedded wife of Sh. Lal Singh and their marriage took place about 40 years back and out of their wed-lock, two daughters were born. No male child was born, as a result of which, the husband started feeling annoyed with her and started mal-treating, abusing her and even mercilessly beating her on one pretext or the other. It was alleged that about one year back prior to the filing of the petition, the husband gave beating to her and turned her out from the matrimonial house and refused to maintain her. The wife pleaded that she was 64 years of age and she has no means to maintain herself.

This petition was contested by the husband and he denied that the lady was his legally wedded wife. Other allegations made in the petition were also not admitted and it was pleaded that she was earning Rs. 2,000/- per month by selling milk. The main defence was that the husband was not legally liable to maintain her as she was not his legally wedded wife.

The trial magistrate accepted the petition and ordered the husband to pay Rs. 300/-per month as maintenance allowance to the Petitioner from the date of filing of the petition i.e. 1st May, 1990.

The husband assailed the aforesaid order before the learned Sessions Judge, by preferring a revision petition. The learned Sessions Judge after hearing the parties, dismissed the revision petition.

The present petition u/s 482 Code of Criminal Procedure has been filed on various pleas, assailing the order of the learned Sessions Judge.

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

An objection regarding the maintainability of the present petition has been raised on behalf of the lady. It has been contended that there is finality attached to the order passed by the learned Sessions Judge in a revision petition preferred u/s 397 of the Code of Criminal Procedure and on that account, the present petition u/s 482 of the Code of Criminal Procedure was barred. There is no doubt that u/s 397 of the Code of Criminal Procedure, the husband had option to assail the order of maintenance passed by the trial magistrate through a revision petition before the High Court or before the learned Sessions Judge. In the present case, the husband exercised that option by preferring the Revision Petition before the learned Sessions Judge u/s 397 of the Code of Criminal Procedure.

Section 397(3) of the Code of Criminal Procedure provides:

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

It only means that only one revision petition is maintainable for assailing the order of trial magistrate, and in case that option has been exercised by preferring a revision petition before one of the forums referred u/s 397 of the Code of Criminal Procedure, another revision petition before other forum was not legally maintainable.

The proceedings u/s 482 of the Code of Criminal Procedure are an independent proceedings. These deal with the inherent powers of the High Court. These are not the proceedings, which can come within the ambit of Section 397 of the Code of Criminal Procedure. Both the remedies are independent. In order to invoke the inherent powers of the High Court u/s 482 of the Code of Criminal Procedure, there are special aspects, which have to be taken note of, as has been provided u/s 482 Code of Criminal Procedure in itself. Such inherent powers can be exercised, in case these are required to be invoked to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In) case, the Petitioner''s case comes within the aforesaid ambit, definitely, this Court can favourably invoke the inherent powers in favour of the Petitioner. Otherwise, it will not be legally possible to interfere with the order of learned Sessions Judge.

The learned Counsel for the Petitioner has vehemently argued that in order to secure the ends of justice, the order passed by the learned Sessions Judge has to be interfered with, inasmuch as there are certain circumstances brought on record, which, if, taken note of, will lead to that inference.

The learned Counsel for the Petitioner submitted that the learned Sessions Judge as well as the trial Magistrate acted illegally in appreciating the circumstances brought on record especially, when on account of the old age of the husband, he was not in a position to earn anything and moreso, he was not at all owning sufficient land to maintain himself and give maintenance allowance in favour of the Respondent. It has further been contended that the evidence on record regarding the earning of the lady has not been appreciated at all and all the circumstances, has caused substantial injustice to the husband.

The learned Counsel for the Petitioner has tried to take this Court through the evidence. I think, in so far as the appreciation of the evidence is concerned, it cannot be made a base for invoking the inherent powers of this Court. Likewise, even improper appreciation of the evidence cannot be made the base for invoking the inherent powers of this Court. Otherwise also, as this Court has been taken through the entire evidence and there does not appear to be any reason whatsoever to come to another conclusion than the one so arrived at by the two courts below.

There is no doubt that the husband was an old man. There is evidence on record that he was owning some 24 Bighas 6 Biswas of land, as per Ext.PA, copy of jamabandi for the year 1987-88. The petition was filed in the year 1991. The husband during the course of his examination before the trial Magistrate, stated that he transferred 24 Bighas of land to Ratti Ram, his grand-son, so that his grand-son gets the land after his death. The husband also admitted that he and Ratti Ram were cultivating the land jointly and Ratti Ram was maintaining him. There is nothing in his statement as to when this land was transferred in favour of Sh. Ratti Ram. Even if, it had been transferred, according to the statement of the husband, it appears that it was only to avoid the wife to inherit this land after his death, but actually, he alongwith his grand-son were cultivating the same jointly and taking the benefit of the same, so it cannot be said that the husband was not having any source of income.

It may be pointed out there that the main plank of the defence of the husband was the denial of the matrimonial relations, as alleged by the lady. Even during his examination on oath before the trial Magistrate, at first instance, he deposed that she was not his legally wedded wife, but during cross-examination admitted by deposing that it was correct that Smt. Ajudhya Devi was the name of his wife. He also stated that it was correct that both of them resided together for the last 40 years. He admitted that he was having some land as tenant, which is referred in Ext. R-1. This land is about 10 Biswas alone. However, regarding other land, he deposed that he has given his entire land to Ratti Ram, who was maintaining him. He also admitted that it was correct that he gave this land to Ratti Ram for the sole purpose that after his death, his wife may not give this land to somebody else. He also admitted that it was correct that it was his duty to maintain Smt. Ajudhya Devi.

It has been contended on behalf of the Petitioner that some application preferred u/s 311 of the Code of Criminal Procedure for leading some additional evidence has been wrongly dis-allowed by the trial court, which had been preferred to prove the present holdings owned by the Petitioner. The court below has rightly rejected that application, in so far as the holdings owned by the Respondent is concerned, has been dealt with in the order itself and no further order was required to be passed on such an application.

From the aforesaid circumstances on record, it was clearly established that in order'' to avoid the payment of the maintenance allowance to his wife, at first instance the husband denied the marriage and when it had been proved, the husband had tried to part with his property, so that the wife could not inherit the same. These circumstances have been rightly appreciated by the two forums below and the orders passed in this behalf, do not require any interference whatsoever, moreso, this Court does not find any occasion- to interfere with these orders by invoking the inherent powers u/s 482 of the Code of Criminal Procedure.

In view of the foregoing reasons, I do not find any merit in the present petition, and accordingly dismiss the same.