Smt. Premwati vs Mahesh Chandra

Deoki Nandan, J.—This is an application u/s 482 of the Code of Criminal Procedure. The applicant-wife had made an application claiming maintenance u/s 125 of the Code of Criminal Procedure. 1973, against her husband who is the opposite party. The learned Magistrate dismissed the application by an order dated 20th January, 1978, on the ground that the applicant had not stated anywhere in her application that she was unable to maintain herself, and further that she was unable to prove that the opposite party was a bad character; and that he did not maintain her inspite of having means to do so. On revision in the court of the Ist Addl. Sessions Judge, Aligarh, the learned Judge maintained the dismissal of the application for maintenance. He held firstly that the applicant''s allegation of illicit relationship between the opposite party and his ''bhabhi'' did not inspire confidence, that the solitary instance of taking liquor on the occasion of ''Holi'' did not mean that the opposite party is a habitual drunkard which might have given a cause to live separately and claim maintenance, and, that the applicant''s allegations that she had been beaten and turned out by the husband, could not be believed; that no report was lodged with the police and the alleged injuries were not examined by any doctor and that, therefore, the allegation appears to have been made simply for the purposes of the case; and lastly, that after the arrival of the applicant at her father''s house, the opposite party gave a notice to her lather alleging that she had been deceitfully brought from his house some eleven months ago and she had carried her clothes and ornaments worth Rs. 10,000/- but was not being allowed to return because the father wanted to marry the applicant to somebody else and, as the application for maintenance was filed after the said notice to which a reply was given denying the allegation, and at about the same time a complaint had also been filed by the opposite party against the applicant''s father for an offence punishable u/s 342/498 of the Indian Penal Code, it appeared that the application was not made bonafide.

Having heard the learned Counsel for the contesting parties, it appears to me that in the present case, both the courts below have refused to exercise the jurisdiction u/s 125 of the Code of Criminal Procedure on assumptions and irrelevant considerations. The assumptions made by the learned Magistrate that the applicant had not stated anywhere in her application u/s 125 Code of Criminal Procedure that she was unable to maintain herself is belied by paragraphs 9 and 10 of the application. The written statement filed by the husband shows that he was very displeased with his father-in-law that does not, however, mean that the husband should not try to bring the wife back or to maintain her, particularly, when he had no complaint against her character. The fact that the husband had filed a complaint against the wife''s father for offences under Sections 342/498 IPC, does not indicate that the husband wanted to bring his wife back and she refused to return to him without many sufficient reason. Indeed the learned Magistrate ought to have examined the parties before him and ascertained whether the husband wanted her to come back but she was refusing to do so without any sufficient reason. Since the wife had moved an application u/s 125 of the Code, she roust have appeared before the learned Magistrate and the husband must have also appeared at about the same time. So far as the husband''s allegation against the wife''s father are concerned, they are the subject matter of a separate trial and, if true, the wife''s father would be punished therefor. The pendency of that complaint had no relevance to the proceedings u/s 125.

The disbelief of the wife''s evidence by the two courts below on the ground that she did not lodge any First Information Report with the police about the alleged incident of beating and having truned out of the house and did not get her injury examined by a doctor, does not accord with the prosecution which may be lawfully drawn from the common course of human conduct. I say so because a case of wife lodging a report with the police, on having been beaten and turned out of the house by her husband is rather uncommon. The common conduct of wife in these matters is to quietly to go back to her father''s place of shelter. It is also uncommon for a wife, particularly if she belongs to a village and is not well-off, to go to a doctor and get an injury report to prove the fact that she was beaten by the husband. The finding of the learned Magistrate on this point and that of the learned Sessions Judge confirming the same, are more mechanical than based on a proper appreciation of the facts and circumstances of the case.

I have already referred to the fact that the learned Magistrate is in error when he observed that the wife''s application for maintenance docs not contain the allegation that she is unable to maintain herself. The husband-oppsite party is on his own admissions, a man having sufficient means and if he really wanted her wife back, he could have easily made an offer in the course of the proceedings before the learned Magistrate requesting him to help him in getting her back and if that were not possible, to have filed a suit for restitution of conjugal rights against the wife in a civil court, rather than to depend on the complaint made by him against his father-in-law for the offences under Sections 342/492 Indian Penal Code, for the purposes of getting back his wife.

It appears from the rejoinder affidavit of Phool Chand, who is the applicant-wife''s brother, that the opposite party, husband has filed a petition for divorce in the court of the Civil Judge, Aligarh, which is matrimonial case No. 126 of 1979 in that court.

Learned Counsel for the opposite party contended that the present application u/s 482 of the Code of Criminal Procedure was not maintainable, in view of the bar against a second revision imposed by Section 397(3) and Section 399(3) of the Code and relied upon the case 1977 ACC 395. The contention of the learned Counsel is, however, not tenable in view of the decision of the Supreme Court in Madhu Limaye v. State of Maharashtra 1978 AWC 96 ; wherein the Supreme Court modified its earlier decision in Amar Nath and Others Vs. State of Haryana and Another, and held that the bar of revision by the same person against an interlocutory order did not apply to the exercise of its inherent powers by the High Court u/s 482 of the Code of Criminal Procedure, I may add that the bar against a second revision by the same person imposed by Sub-section (3) of Section 397 or the finality attached to the decision of the learned Sessions Judge on an application in revision Under Sub-section (3) of Section 399, are only "in relation to that person in the revisional jurisdiction of the High Court, and do not divest the High Court of its jurisdiction to revise the order of the Sessions Judge or of the Magistrate in the proceeding giving rise thereto." The bar is only against the person who applies for revision in the court of Sessions. The learned Counsel for the opposite party then referred to the decisions of the Supreme Court in State of Orissa Vs. Ram Chander Agarwala and Others, and Jagir Singh Vs. Ranbir Singh and Another, . These cases are clearly distinguishable and do not touch the question before me about the maintainability of the present application u/s 482 of the Code.

In the result, this application must succeed and the orders of the two courts below must be set aside, but the question still remains whether I should look into the evidence and decide the case here and now or remand it to the learned Magistrate for a fresh inquiry. Keeping in view the object of the provision of Section 125 of the Code of Criminal Procedure and the summary nature of the proceedings thereunder, and the fact that the husband has already filed a petition for divorce against the wife in the court of Civil Judge, Aligarh, being matrimonial case No. 126 of 1979, as recently as 30th May, 1979, I am of the view that the ends of justice would be served if the present proceedings u/s 125 are altogether quashed and the parties arc left to pursue their remedies before the civil court, in the said matrimonial case No. 120 of 1979, in the court of Civil Judge, Aligarh, or in any other proceeding which they may like to institute, as may be permissible in law. I order accordingly.