Ramesh Kumari vs Barhma Nand @ Barham Parkash

S.K. Jain, J.

Ramesh Kumari, petitioner herein, through this petition under Section 482 of the Code of Criminal Procedure, seeks quashing of order of July 19, 1991 passed by Judicial 1st Class, Charkhi Dadri, and that of Sessions Judge, Bhiwani, dated April 18, 1992, thereby refusing to grant maintenance to her under Section 125 of the Code of Criminal Procedure. The petition has been contested on behalf of the respondent.

Short facts of this case are that the petitioner was married with the respondent in the year 1978 and they resided together as husband and wife upto 1985, when they had fallen out. The wife brought a petitioner under Section 125 of the Code of Criminal Procedure in the Court of Judicial Magistrate 1st Class Charkhi Dadri, on 1.9.1987. The learned trial Magistrate held that the respondent. Resultantly, he dismissed the petition vide his judgment of July 19, 1991.

Feeling aggrieved, the wife preferred criminal revision No. 30 of 1991 which was heard and decided by Shri M.K. Bansal, Sessions Judge, Bhiwani, vide order dated April 18, 1992 thereby upholding the finding of the learned Magistrate and dismissing the revision petition. Now through the present petition, the wife seeks the quashing the aforesaid orders.

Learned counsel for the respondent has raised a preliminary objection that the petitioner having exhausted her statutory remedy available to her under Section 393(ii) of the Code of Criminal Procedure.

The learned counsel for the petitioner in reply, has argued that both the Courts below having misread evidence and arriving at an incorrect decision, which resulted in miscarriage of justice, this Court would certainly interfere under Section 482 of the Code of Criminal Procedure. In support of his argument, he has cited at the bar Hori Lal v. Smt. Sita, 1991(3) RCR 15.

I have carefully examined the above said judgment. Therein the main argument of High Court for the petitioner was that under the provisions of Section 125 Cr.P.C., the respondent could not have claimed the maintenance for more than a year and, therefore, such an objection having been raised by the respondenthusband before the Court below, should been allowed. Under the peculiar circumstances of that case, this Court held that where maintenance allowance was allowed without the reference to the date from which the same was payable, a clarification to that effect will help in solving the matter in dispute between the parties and it was, therefore, directed that it would be effective from the date of the order itself. But the circumstances of the case in hand are tangent apart from those of the abovesaid case. Herein the two Courts below have carefully and surgically examined the evidence led by the parties on the question of the factum of marriage between them and they had come to concurrent finding that wife had failed to establish the factum of her marriage with the respondent. Hence the abovesaid judgment is of no avail to the petitioner. The inherent power under Section 492 of the Code can be exercised by the High Court (i) to give effect to any order passed the Code (ii) to prevent abuse of the process of any Court; or (iii) otherwise to secure ends of justice. In regard to exercise of that inherent power of the High Court it has been observed by the Hon''ble Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47 that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. In holding the above view, I am fortified by the ration laid down by the Supreme Court in Janata Dal v. H.S. Chowdhary, (1992)5 SCC 305.

Coming to the merits of case also, I find that both the Courts below have scrutinised the evidence on record and had then come to the conclusion that the marriage between the parties could not be proved. I do not find any fault with them. This petition, therefore, is without merit and is dismissed as such.