Subhawati Devi vs The State of Bihar and Others

Ashish N. Trivedi, J.—The Petitioner, being aggrieved by the order dated 13.8.1996 passed by the 2nd Additional District and Sessions Judge, Gopalganj in Criminal Revision No. 104 of 1994, preferred by Opposite Patty No. 2 challenging the order dated 7.3.1394 passed by the learned Judical Magistrate, 1st Class, Gopalganj in Trial No. 556 of 1994 u/s 125 of the Code of Criminal Procedure by which the Petitioner was allowed monthly maintenance allowance at the rate of Rs. 300/- and Rs. 100/- each to the son and daughter, has approached this Court and has preferred this application u/s 482 of the Code of Criminal Procedure, praying that the revisional order dated 13.8.1996, insofar as it refuses the monthly allowance of Rs. 300/- to the Petitioner, be quashed.

The case of the Petitioner in the application u/s 125 Code of Criminal Procedure which was filed in the Court of the Chief Judicial Magistrate, Gopalganj on 9.8.1990 and was eventually transferred to the Court of Judicial Magistrate, 1st Class, Gopalganj is that the Petitioner and opposite party No. 2 were married in May, 1983 according to the Hindu rites and as a result of consummation of marriage, she gave birth to a son and two daughters, one of whom is dead. According to the Petitioner, she was driven out by her husband in February, 1990, as he and his father demanded a sum of Rs. 10,000/- which could not be fulfilled by the Petitioner because her father is a poor person. The Petitioner claims to be living with her father and she has no means of earning live hood so as to maintain herself and her two children. It is claimed that the husband of the Petitioner has an Oil Expellor and a Flour Mill from which he earns about Rs. 2000/- per month, but refused to maintain the Petitioner and her children. Therefore, she claimed a sum of Rs. 500/- as maintenance for herself and Rs. 200/- each for her two children.

The Opposite Party No. 2 admitted the marriage, but denied to have driven out the Petitioner from his house and also denied the alleged demand of Rs. 10,000/- and claim that she is living with one Ramlal Sah in adultery.

The learned judicial Magistrate after appreciating the evidence led by the parties came to the conclusion that the Petitioner is entitled to monthly allowance for maintenance at the rate of Rs. 300/- for herself and the monthly allowance at the rate of Rs. 100/- each to the two children and directed the payment to be made by 20th of each month with effect from 9.8.90 i.e. the date of the presentation of the application u/s 125 Code of Criminal Procedure.

Opposite Party No. 2 being aggrieved, preferred Cr. Revision No. 104 of 1994 which was allowed in part on 13.8.96 by the learned 2nd Addl. District and Sessions Judge Gopalganj, who maintained the order of the Learned Judicial Magistrate, 1st Class as regards the monthly maintenance to the two children, but set aside the order for grant of maintenance to the Petitioner.

I have heard learned Counsel for the Petitioner Mr. Satish Chandra Mishra and learned Counsel for the opposite party No. 2 Mr. Manan Kumar Mishra, and have examined the materials on the record.

The contention of the learned Counsel for the Petitioner is that it was not open for the Revisional Court to have reassessed the evidence and function as an Appellate Court as only jurisdictional error could have been corrected and the findings of fact recorded by the learned Judicial Magistrate could not have been interfered with, in exercise of the power u/s 397 of the Code of Criminal Procedure. Learned Counsel for opposite party No. 2 has contended that there is no infirmity in the impugned order as it has been held by the Revisional Court that a has not been established by the Petitioner that she is living separately from her husband on account of sufficient cause.

Having considered the su(sic)sions of the learned Counsels for the parties and the materials on the record. I am of the opinion that the Petitioner is entitiled to maintenance, and the order of the learned 2nd Additional District and Sessions Judge Gopalganj, has to be set aside.

Opposite Party No. 2 has states on oath on 24.11.1994 in Trial No. 830 of 1994, u/s 498 I.P.C that (sic) remarried and had divorced the Petitioner in August, 1993. Explanation (b) in Section 125 Code of Criminal Procedure defines atesa wife "to include a woman who has been divorced by, or has obtained divorce from, her husband and had not remarried". The Revisional Court has found that the allegation of a(sic) made against the Petitioner by the Opposite Party No. 2 has not been established. However, in view of the adm(sic) of the Opposite Party No. 2 in the No. 820/94, that he had divorced the Petitioner in August, 1993, the Petitioners entitled to claim maintenance at least (sic) effect from 7.3.1994. Accordingly, the (sic) impugned order dated 13th August (sic) passed by the 2nd Additional District (sic) Sessions Judge, Gopalganj in Criminal Revision No. 104 of 1994 (Suryakant (sic) v. Sobhawati Devi) insofar as it (sic) to grant maintenance to the Petitioners set aside and it is directed that Opposite Party No. 2 shall pay arrears of maintenance at the rate of Rs. 300/- per month for the period commencing from (sic) till 30th June, 1997 by 31st of Octomber 1997 and remit the amount by (sic) order to the Petitioner. Opposite Party No. 2 is further directed to pay the (sic) maintenance allowance for the (sic) July, 1997 by 20th of August, 1977 of the rate of Rs. 300/- per month and shall continue to pay the said amount by 20th of each succeeding month. It is clarified that the Revisional Court had also ordered the Opposite Party No. 2 to pay Rs. 100/- each, to the two children, per month by the 20th of each month which is maintained and the Opposite Party shall continue to pay to the Petitioner for maintenance of the son and daughter of the Petitioner as directed by the Trial Court and the Revisional Court with effect from 9.8.1980.

In the event of default by Opposite Party No. 2 in complying with the direction aforementioned, it would be open for the Petitioner to approach this Court for taking appropriate action against Opposite Party No. 2 under the Contempt of Courts Act, 1971. It is needless to say that the Petitioner is entitled to invoke the jurisdiction of the concerned Judicial Magistrate as envisaged under Sub-section (3) of Section 125 Code of Criminal Procedure.

The petition is accordingly disposed of.

Order dt. 26.8.1997

It appears that on account of typographical error in the last line of paragraph 9 of on page 4 of the judgment dated 7.8.97, instead of ''1990'', the figures ''1980'' has been mentioned.

Accordingly in the last line of paragraph 9, instead of ''1980, ''1990'' shall be read and the certified copies issued shall be corrected accordingly.