Thendral Sampath vs C.U. Sampath

P.R. Shivakumar, J.—This Criminal Original Petition has been filed u/s 482 Criminal Procedure Code praying for an Order to call for the

records relating to the order of the learned Judicial Magistrate No. 1, Tirupathur dated 01.04.2005 passed in M.C. No. 3/2004, which was

confirmed in Revision by the Order of the learned Principal Sessions Judge, Vellore dated 22.12.2005 made in Criminal Revision Petition No.

18/2005, to set aside the same and to award maintenance in respect of the petitioner herein as claimed in the maintenance case.

The petitioner herein had filed a maintenance case in M.C. No. 3/2004 on the file of the learned Judicial Magistrate No. 1, Tirupatthur claiming

maintenance for herself and for her three minor children u/s 125 of the Code of Criminal Procedure. After enquiry, the learned Judicial Magistrate

No. 1, Tirupatthur allowed the maintenance case in part so far as the minor children are concerned and directed the respondent herein to pay them

monthly maintenance at the rate of Rs. 1,100/-, Rs. 900/- and Rs. 500/- respectively. The learned Judicial Magistrate dismissed the maintenance

case so far as the claim of maintenance for the present petitioner (wife) is concerned.

Challenging the said Order of the learned Judicial Magistrate No. 1, Tiruppatthur dated 01.04.2004 so far as the same relates to the dismissal of

the claim of maintenance made by the petitioner (wife) for herself, she filed a Criminal Revision Petition before the learned Principal Sessions

Judge, Vellore in Criminal Revision Petition No. 18/2005. The learned Principal Sessions Judge, after hearing both sides, dismissed the said

Criminal Revision Petition by order dated 21.12.2005 confirming the order of the learned Judicial Magistrate No. 1, Tiruppatthur. The legality and

correctness of the said order of the learned Principal Sessions Judge dated 21.12.2005 confirming the Order of the learned Judicial Magistrate

No. 1, Tiruppatthur dated 21.12.2005 has been put in issue in the present Criminal Original Petition filed u/s 482 of the Code of Criminal

Procedure.

Despite service of notice, the respondent herein has not entered appearance either in person or through counsel. Therefore, the following order

is hereby passed after hearing the arguments advanced by the learned Counsel for the petitioner and upon perusing the materials available on

record.

The wife, whose claim for maintenance was turned down by the learned Judicial Magistrate No. 1, Tiruppatthur in M.C. No. 3/2004 by order

dated 01.04.2005, has filed the present Criminal Original Petition invoking Section 482 of Code of Criminal Procedure after unsuccessfully

challenging the said Order of the Judicial Magistrate No. 1, Tiruppatthur before the learned Principal Sessions Judge, Vellore in Criminal Revision

Petition No. 18/2005.

Section 397 of the Code of Criminal Procedure deals with the powers of revision of the Sessions Judge as well as the High Court. Sub clause

(3) of Section 397 reads as follows:

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by

the same person shall be entertained by the other of them

The said sub-clause provides that an order of the Judicial Magistrate is unsuccessfully challenged in a revision before the Sessions Judge or in

the High Court, no second Revision Petition to the other court at the instance of the very same person can be entertained. To be specific, when a

person files a Revision before the Sessions Judge and such a revision petition is dismissed by the Sessions Judge, he cannot file a second revision

before the High Court. However, time and again, it has been held that the embargo provided under Sub section (3) of Section 397 cannot either

take away or abridge the inherent powers of the High Court spelt out in Section 482 of the Code of Criminal Procedure. The said power spelt out

in Section 482 of Criminal Procedure Code is to be used for preventing abuse of process of court or otherwise for securing the ends of justice.

While interpreting the scope of the inherent powers of the High Court in a number of cases, the Hon''ble Apex Court has spelt out a caution to the

effect that the said power should be exercised with circumspection and sparingly. In the present case, after going through the materials on record,

this Court is not able to hold that the petitioner has made out a case of abuse of process of court warranting the exercise of the inherent power of

the High Court. The petitioner has also failed to show that the exercise of inherent power and interference with the order of the Courts below have

become necessary to secure ends of justice.

In the case on hand, wherein claim for maintenance was made by the petitioner herein for herself and on behalf of her minor children, the Trial

court, after trial, held that the minor children alone were entitled to maintenance and the petitioner herein (wife) was not entitled to get maintenance

as she had without any reasonable cause, refused to come and live with the respondent (husband) even though the respondent was prepared to

take her back. The case of the minor children and that of the petitioner (wife) are on different footing. Section 125 Sub clause (4) proviso reads as

follows:

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may

be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they

are living separately by mutual consent.

No similar condition is stipulated so far as the minor children are concerned. The obligation to maintain the minor children is not dependent upon

their living with the father. On the other hand, the refusal of the wife to live with her husband without there being sufficient reason is made a ground

on which she is held disentitled to claim maintenance from her husband. In this case the respondent herein/husband had also resisted the claim

made by the petitioner for her own maintenance on the ground that she had refused without any sufficient reason to come and live with the

respondent. Referring to the above said provision, namely Sub-clause (4) of Section 125 of Criminal Procedure Code, the learned Judicial

Magistrate No. 1, Tiruppatthur held that the petitioner herein was disentitled to claim maintenance for herself from her husband (the respondent

herein).

The learned Counsel for the petitioner contended that the finding of the Judicial Magistrate to the effect that the petitioner herein refused to live

with her husband without any sufficient reason even though the respondent herein / husband was ready to take her back was against the evidence

adduced and that the learned Principal Sessions Judge, in the revision preferred against the Order of the learned Judicial Magistrate No. 1,

Tiruppatthur also committed the very same mistake by confirming the said finding of the learned Judicial Magistrate No. 1, Tiruppatthur.

It is the further contention of the learned Counsel for the petitioner that there was misappreciation of evidence of PW1 resulting in miscarriage

of justice and hence the petitioner herein was justified in invoking the inherent powers of the High Court u/s 482 of Criminal Procedure Code. In

support of his contention, the learned Counsel referred to a one line statement made by PW1 in her deposition to the effect that her husband was in

the habit of physically assaulting her and she used to go to her parent''s house whenever she was thus assaulted by her husband. According to

PW1, the last of such ill-treatment, she had in the hands of her husband (the respondent herein), was on 14.07.2003 and on that day at odd hours,

namely 3.00 AM, the respondent herein after driving out the petitioner and her minor children from his house locked the house and went out to

attend his duty. The said allegation has been denied by the respondent herein. Even though such a drastic allegation was made by the petitioner,

while deposing as PW1 she has made a clear admission that she lodged a complaint before the All Women Police Station, Tiruppatthur on

01.08.2003 wherein she had made a prayer that her husband (respondent herein) should be directed to set up a separate residence for them at

Jolarpet. The said admission made by PW1 seems to have weighed by the courts below. Admittedly the said complaint was lodged on

01.08.2003. According to the evidence of PW1, she was ill-treated 16 days prior to the said complaint, namely on 14.07.2003. The courts below

have come to a conclusion that if at all such an ill-treatment could be true, the petitioner would not have simply pleaded for directing the respondent

to set up a separate residence for the husband and wife to live. The courts below have also pointed out the fact that neither the Panchayatdards nor

the children of the parties were examined to prove the alleged ill treatment. Under such circumstances alone, the courts below came to the

conclusion that the petitioner herein had not proved her case of ill treatment, as a justification and sufficient reason for her withdrawal from the

matrimonial company even though the respondent was ready and willing to take her back.

A cursory glance at the material available on record will make it clear that right from the beginning, the petitioner herein was insisting upon

setting up a separate residence at Jolarpet, which demand was not conceded by the respondent herein and that only pursuant to the same, the

problem between the couple arose. The learned Judicial Magistrate on an appreciation of evidence, came to the conclusion that the petitioner was

not entitled to claim maintenance, as she refused to live with her husband without any sufficient reason. It can''t be said that the said finding is based

on no evidence or that no reasonable person would have arrived at such a conclusion based on the evidence available on record. In short, the said

finding cannot be termed perverse. The learned Principal Sessions Judge properly dealt with the Revision Petition and came to the correct

conclusion that there was no scope for interference with the Order of the Judicial Magistrate No. 1, Tiruppatthur rejecting the claim of the

petitioner for maintenance for herself. This Court is not in a position to find any defect or illegality in the orders of the courts below. The petitioner

has not proved that there was abuse of process of court or miscarriage of justice. There is no scope for any interference with the orders of the

courts below in exercise of the inherent powers of this Court u/s 482 of Criminal Procedure Code. There is no merit in this petition and the same

deserves to be dismissed. Accordingly, this Criminal Original Petition is dismissed. There shall be no order as to costs.