Natabar alias Abhaya Kr. Das vs State of Orissa and Another

A.S. Naidu, J.—This is an application invoking the inherent jurisdiction of this Court u/s 482 of Code of Criminal Procedure challenging the revisional order passed by the learned Sessions Judge, Balasore Bhadrak, Balasore in Criminal Revision No. 30 of 2000 refusing to interfere with the order dated 22.4.2000 passed by the learned J.M.F.C. Balasore in M.C. No. 41/97 u/s 125 of Code of Criminal Procedure awarding a sum of Rs. 450/- as monthly maintenance to a destitute wife.

Bereft of all necessary details, the short facts as revealed from the petition and other documents is that the Petitioner had married Opp. Party No. 2 on 8.5.1995 in accordance with Hindu rites and customs. Soon after the marriage, it is alleged, dissension cropped up relating to payment of dowry. It is further alleged that on 28.8.1995, the Petitioner and his parents drove out Opp. party No. 2, wife from her matrimonial house. The father of Opp. party No. 2 being a poor cultivator, Opp. party No. 2 faced immense difficulty and financial stringency to maintain herself and ultimately, filed a petition u/s 125 of Code of Criminal Procedure praying for maintenance @ Rs. 500/- per month by the Petitioner.

To substantiate the case, Opp. party No. 2 wife examined three witnesses. The learned trial Court on the basis of the evidence adduced arrived at a conclusion that there was a legal marriage between the Petitioner and Opp. party No. 2; that during subsistence of such marriage, the Petitioner husband developed illicit relationship with Anr. woman named Kanak; that Opp. party No. 2 wife was driven out from her matrimonial house; and that she was unable to maintain herself. The learned Magistrate also on the basis of evidence, which was not countenanced by the Petitioner, arrived at a finding that the Petitioner was having 9 Acres of land and was earning Rs. 40,000/- per annum. He was also having a hauller machine and was earning about Rs. 2000/- per month approximately. On the basis of such finding, the learned Magistrate directed the Petitioner to pay monthly allowance of Rs. 450/- to Opp. party No. 2 with effect from the date of filing of the application u/s 125 of Code of Criminal Procedure i.e. on 24.2.1997.

The said order was challenged by the Petitioner in Criminal Revision No. 30 of 2000 before the learned Sessions Judge, Balasore-Bhadrak, Balasore. The learned Sessions Judge after elaborate discussion of the materials available confirmed the findings arrived at by the Court below and refused to interfere with the order of maintenance. Against the said order, the present Criminal Misc. Case has been filed.

The sole contention of the Petitioner is that he was not given an opportunity to defend himself by the learned Magistrate and that the finding of the Court below that the Petitioner is having illicit relationship with Kanak, is not correct. Opp. party No. 2, wife is intentionally refusing to live with him though the Petitioner has called upon her to stay with him in the matrimonial house. In course of hearing, Dr. Tripathy, learned Counsel for the Petitioner-husband forcefully submitted that the wife having intentionally deserted the husband and as she is unwilling to stay with the husband, she is not entitled to any maintenance. It is further submitted that awarding a maintenance of Rs. 450/- per month is in the higher side and needs variation. It is also submitted that the Petitioner-husband was not given adequate opportunity to defend himself and as such, it is a fit case, where the case should be remanded for fresh trial.

On the other hand, learned Counsel for Opp. Party No. 2 wife drawing my attention to Section 397 of Code of Criminal Procedure submitted that the husband having preferred a revision against the order of maintenance passed by the learned Magistrate before the Session Judge, the present petition which is in effect a Second revision though couched as Crl. Misc. Case, is not maintainable. According to Mr. Mishra, the Petitioner is trying to circumvent the provisions of the Code of Criminal Procedure and has invoked the inherent jurisdiction by filing the present petition though there is specific bar for filing a second revision by a person, who has already challenged the same order in revision. Mr. Mishra submitted that the present revision should not be entertained and should be dismissed in limine.

Though I am agreeable with the contention raised by Mr. Misra, in order to ascertain as to whether the Courts below have committed any error apparent on the face of the records thereby causing irreparable prejudice to the Petitioner, I also scrutinised the materials available.

The records reveal that adequate opportunity was given to the Petitioner-husband to adduce evidence. It appears that on 9.2.2000, the wife of the Petitioner closed her case. Thereafter several adjournments were granted to the Petitioner, who was the Opp. party before the Court below to adduce evidence on his behalf. Ultimately on 13.3.2000, a prayer for time to adduce evidence was allowed as the last chance, subject to payment of Rs. 30/- as cost. The case thereafter was posted to 7.4.2000. On the said date also a petition for adjournment was filed and even the cost was not paid. Thus the learned Court below had no other option but to reject the petition and close the case. The husband-Petitioner having failed to avail the opportunity given under the law is estopped from raising the contention that prejudice has been caused to him. Such submissions are not acceptable.

Admittedly, there was marriage between the Petitioner and Opp. party No. 2 and they continued to live as husband and wife. The contention of the husband that the wife is intentionally and wilfully refusing to reside with him cannot be accepted, in as much as in the present case as the evidence reveals the Petitioner-husband has developed illicit relationship with Anr. woman named Kanak. Any lady having self-respect shall not agree to stay with her husband, who is having illicit and extramarital relationship with Anr. woman. The Courts below on assessing the evidence have arrived at a conclusion that payment of Rs. 450/- towards maintenance was just and proper. I do not find any reason, much less any compelling reason, to differ from the said concurrent finding of the fact. This Court while exercising power under the inherent jurisdiction cannot re-assess the evidence and disturb a finding unless the said finding is perverse or contrary to the evidence. I do not find any infirmity in the conclusion arrived at by the Courts below and I am, therefore, not inclined to interfere with the order impugned.

This Crl. Misc Case is accordingly dismissed.