Smt. Santosh Kumari vs Jaswant Rai

Bhopinder Singh Dhillon, J.—Petitioner Smt. Santosh Kumari filed a petition u/s 125 of the Code of Criminal Procedure claiming maintenance against Jaswant Rai, respondent, her husband. The maintenance application was dismissed by the learned Magistrate by observing that the petitioner had not averred in the petition that she was unable to maintain herself and in the absence of such an averment, the maintenance application could not be allowed. The revision petition filed by the petitioner u/s 197(3) of the Code of Criminal Procedure before the learned Additional Sessions Judge, Amritsar was also dismissed The learned Additional Sessions Judge observed that neither there was any pleading that the petitioner was unable to maintain herself, in the petition, nor she had stated so on oath in her statement when examined in Court. Both the above mentioned orders are sought to be quashed under the inherent jurisdiction of this Court to be exercised u/s 482 of the Code of Criminal Procedure.

Mr. Puri, learned counsel for the respondent has raised an objection that in view of the provisions of sub-section (3) of section 397 of the Code of Criminal Procedure, this Court has no jurisdiction to exercise its inherent powers u/s 482 of the Code of Criminal Procedure as the petitioner''s revision stands dismissed by the Additional Sessions Judge The learned counsel relies on the judgment of their Lordships of the Supreme Court in Madhu Limaye Vs. The State of Maharashtra, . It is no doubt true that as a principle if there are specific provisions dealing with a situation provided in the Code or if there is a specific taw regarding certain matter, the inherent powers will not be exercised, but there are few exceptional cases where the impugned orders bring out a situation which is an abuse of the process of the Court of for purposes of securing ends of justice, interference by the High Court may become absolutely necessary. In the case relied upon by Mr. Puri, even though there is a specific bar under the provisions of sub-section (2) of section 397 of the Code of Criminal Procedure that revisional powers cannot be exercised against the interlocutory order, still the inherent powers were invoked and their Lordships approved of the same.

Mr. Bhagirath Dass, learned counsel for the petitioner, on the other hand, relies on another judgment of their Lordships of the Supreme Court in State of Rajasthan Vs. Gurcharandas Chadha, . It has been held in that case that even in a case where revision was dismissed by the High Court against the order and the subsequent development justified, to meet the ends of justice, quashing of the order which was upheld in revision with a view to achieve the ends of justice, the High Court has the power u/s 482 of the Code of Criminal Procedure to exercise inherent powers. The contention of the learned counsel appears to be correct that even when the earlier petition has been dismissed by the High Court, interference by the High Court on the same subject matter u/s 482 of the Code of Criminal Procedure was approved by their Lordships in the said decision. Following their Lordships of the Supreme Court in Madhu Limaye''s case (supra), the learned Single Judge of this Court in Banwari v. Hari Blas (1980) C.L.R. (P&H) 75, took a similar view and held that provisions of sub-section (3) of section 397 of the Code of Criminal Procedure, will not be a bar for the exercise of the inherent powers of this Court with a view to meet the ends of justice.

In view of what has been stated above, there is no merit in the contention of the learned counsel for the respondent.

As regards merits, I have gone through the statement of the petitioner made by her on oath. She has stated in her statement that she was unable to maintain her, therefore, the observation mace by the learned Additional Sessions Judge that she did not make such an averment in her statement, is factually incorrect. As regards the non-making of the averment in the petition itself, the learned counsel for the petitioner relies on a Single Bench judgment of this Court in Smt. Jito vs. Shri Buta (1981) 83 P.L.R. 325 to contend that proceedings u/s 125 of the Code of Criminal Procedure are neither a criminal trial nor trial of a civil suit and absence of the plea that the wife was unable to maintain herself, will not be fatal to the grant of the relief. It may be pointed out that according to the petitioner she was married to the respondent in 1961. She was maltreated and the respondent refused to maintain her. She filed a petition for maintenance u/s 488 of the Code of Criminal Procedure which petition was allowed. At the stage of the appeal, the husband compromised with the petitioner and took her back. She was again turned out of the house and she was made penniless without any source of livelihood. In my considered opinion this is a case where the ends of justice will be met by exercising the inherent jurisdiction. I accordingly allow this petition and quash the order of the learned Magistrate as also the learned Additional Sessions Judge and direct the Magistrate to proceed to determine the quantum of maintenance after hearing the parties. Mr. Puri, learned counsel for the respondent, however, contends that the marriage between the parties has already been annulled and that the petitioner will not be entitled to any maintenance after the date of the annulment of the marriage. This plea, if so advised, may be raised before the learned Magistrate who shall decide the quantum of maintenance in accordance with law. The parties art directed to appear before the trial Magistrate on 7th of September, 1981.