Padmalochan Behera vs Anjana Behera

P.K. Tripathy, J.—Heard.

This application u/s 482, Code of Criminal Procedure stands disposed of at the stage of admission after hearing the learned Counsel for the Petitioner.

An order of maintenance was granted in favour of the opposite party by learned S.D.J.M., Udala on 30.5.1996 in Crl. Misc. Case No. 41 of 1994. That order was challenged in the Court of Session and learned Addl. Sessions Judge. Baripada on 6.3.2001 passed the impugned judgment in Crl. Revision No. 26/26 of 1999/1996 maintaining that order of maintenance. As against that Petitioner has filed this application u/s 482, Code of Criminal Procedure in view of the bar in Sub-section (3) of Section 397 Code of Criminal Procedure for preferring a second revision.

Opposite party advanced the claim of maintenance on the ground that she is the legally married wife of the Petitioner and has begotton three children to him. She further alleged that because of illicit relationship of the Petitioner with one Bimala and ill-treatment meted to her by the Petitioner through that Bimala opposite party has been rendered homeless and destitute and accordingly she claimed for maintenance u/s 125, Code of Criminal Procedure in his show-cause while admitting the sexual relationship and getting three children through the opposite party Petitioner claimed that the opposite party is his concubine and not wife inasmuch as he had married to Bimala as back as in the year 1976. Both the parties led oral and documentary evidence. On assessment of such evidence on record both the courts below concurrently held that opposite party is the legally married wife of the Petitioner and she is entitled to maintenance. Accordingly, a maintenance of Rs. 500/- has been granted in her favour.

Learned Counsel for the Petitioner inviting attention of this Court to Annexure-3, i.e., a copy of the judgment in T.S. No. 35 of 1996 of the Court of Civil Judge (Sr. Division). Udala argues that in a suit brought by Bimala against the present opposite party and the Petitioner as Defendants 1 and 2 respectively a decree has been granted in her favour that she is the legally married wife of the Petitioner and that judgment and decree was passed on 2nd April, 1999. Learned Counsel for the Petitioner states that in view of that decree from the Civil Court, opposite party is not entitled for maintenance u/s 125, Code of Criminal Procedure. Such a document was not before the Courts below while considering the application u/s 125, Code of Criminal Procedure. Therefore, if the Petitioner so chooses he may move appropriate application u/s 127, Code of Criminal Procedure and if any such application shall be filed, that be heard and disposed of in accordance with law and after affording opportunity of hearing to the opposite party i.e. Anjana Behera.

With the said observation the application u/s 482, Code of Criminal Procedure stands disposed of being not maintainable in the absence of any illegality in the impugned order.