Yadram Verma vs Smt. Maragsri alias Shri Debi

M. Wahajuddin, J.—The opposite party is the wife of the applicant. It would appear that she earlier brought an application u/s 125, Code of Criminal Procedure, seeking maintenance from the husband. That proceeding resulted into a compromise dated 22-11-1974 and was decided in its terms (Annexure ''II'' to the affidavit). Thereafter a fresh application u/s 125, Code of Criminal Procedure. was preferred by the opposite party on 27-6-1978 seeking maintenance. It is Annexure ''SCA-1''. That application has been allowed by the Magistrate awarding a maintenance of Rs. 150/- per month vide Annexure ''III'' to the affidavit. The applicant then preferred a revision, but did not appear. The Additional Sessions Judge rightly disposed of the revision on merits, as once records are summoned, Criminal Revisions are not dismissed in default. Annexure ''IV'' is the copy of the judgment of the revisional Court, which upheld the judgment of the Magistrate.

The applicant has prayed that the orders of the Magistrate as well as the revisional Court both be quashed. The first point urged in support of the contention is that in view of the provisions of Section 125(1)(a), Code of Criminal Procedure, wife can seek maintenance only when she is unable to maintain herself. The second contention urged is that it has to be shown that the person concerned having sufficient means neglects or refuses to maintain. The third point urged is that once a compromise was entered into, fresh grounds arising subsequent to the compromise are to be made out. The fourth contention is that in any case the Magistrate could not proceed ex parte before recording his satisfaction that the absentee party was wilfully avoiding service or wilfully neglecting to attend the Court.

Before I enter into the discussion of these points, I may at the very out set observe that while exercising powers u/s 482, Code of Criminal Procedure, the Court does not function as a court of appeal or revision. It also would not enter into the appreciation of evidence as such. Inherent powers are to be very sparingly exercised for compelling reasons, when there has been any abuse of the process of law or any glaring injustice. It has to be further exercised only in the ends of justice. These principles have been often repeated. I may refer to only one of the pronouncements on the point, namely, the case of Madhu Limaye v. State of Maharashtra 1978 ACrR 78.

I now proceed to consider the various points urged before me. As regards the argument that maintenance can be claimed only when wife is unable to maintain herself, a perusal of the application u/s 125, Code of Criminal Procedure, would show that the wife did allege in paragraph 4 of her application that she also is unable to maintain herself, apart from the pooer means of her father. In reply to such averments the husband simply stated in paragraph 4 of his written statement, attached as Annexure ''1'' to the Supplementary rejoinder affidavit, that the father of the wife has an income of Rs. 500/- per month from the engine. He has no where stated either that the wife has any independent means or source of earning or that she is capable of earning. The pleading was confined to means of the father of the wife, which is irrelevant. In case of a married lady the obligation u/s 125, Code of Criminal Procedure, to maintain her is cast upon the husband and not upon the father. It was argued that the wife is a Matric. Firstly, this plea was not raised in the written statement and, secondly, her being matriculate would not lead to any inference that she can earn. Reliance was placed upon the case of J.M. Dutta Vs. State of U.P. and Another, . In that case stress was laid on the point that a finding should have been given about the means of the wife, whether she is unable to maintain herself. It is note worthy that the Court was hearing a revision and was not considering the matter in exercise of inherent powers u/s 482, Code of Criminal Procedure, as such. The other side has relied upon the case of Smt. Munni Devi Vs. Om Pal, . In that case, which is a Division Bench case, it was held that the proceedings u/s 125, Code of Criminal Procedure, are analogous to the civil proceedings and stress was laid on that aspect. It was further held where wife claims in her application for maintenance u/s 125(1)(a) that she was unable to maintain herself and was not controverted by the husband in his written statement, the prayer for maintenance would not be refused and the condition No. (a) of Section 125(1), Code of Criminal Procedure, would stand satisfied. It would appear that actually the matter was referred to the Division Bench, because the Single Judge hearing it did not agree with the view taken in the case of Manmohan Singh v. Smt. Mahender Kaur 1976 CriLJ 1964, which has been cited and followed in the case of J.M. Dutta (supra). In the case of Munni Devi (supra) the case of Manmohan Singh was explained and a distinction was drawn between cases in which there is no plea by the wife that she is unable to maintain herself and the cases in which the wife has pleaded it and it is not controverted. I may also mention that this is a matter of fact. The applicant could have raised arguments on this point before the revisional Court. It would rather be an abuse of the process of law, if a party is allowed to by pass the routine procedure as contained in the Code of Criminal Procedure itself and then came forward before this Court raising question of fact. T, therefore, do not find any force in such submission.

The next point that has been urged is that actually the cause af action for any subsequent application is independent of the previous cause of action and maintenance can be claimed only on the proof of the new cause of action. Nathuram v. Smt. Ramsri 1964 ALJ 72 is an authority on this point. Two propositions of law have been laid down in this case. Firstly, that any compromise arrived at earlier did not deprive the Magistrate of the jurisdiction to entertain a second application subsequently for maintenance and, secondly, that due weight is to be given regarding the terms of the compromise while determining the amount of maintenance. The learned Counsel for the applicant relied upon paragraph 6 of this very ruling, in which it has been observed that any decision in an earlier proceedings (resulting into a compromise) shall not be binding on the parties, but a relief previously refused can be prayed for and granted on fresh grounds or on any similar grounds having come into existence since after the dismissal of the earlier application. I have considered the strees laid down by the learned Counsel for the applicant on the observation made in paragraph 6 of this ruling. It is noteworthy that in the compromise (Annexure ''2'') it was recited that parties have agreed that Yadram Varma is willing to take the wife to Aligarh with him and the wife is also willing to go with the husband. It is, further, recited that the husband would not subject the wife to any type of hardship, nor would indulge into any beating, nor would have a second marriage, nor will he keep illicit relations with any other girl and keep the wife comfortably. It was, further, provided that the husband would be liable to pay Rs. 150/- per month, if he indulges into beating or ill treats the wife. I have already referred paragraph 6 of the case of Nathuram (supra). The observations do indicate that even on the same grounds taken earlier also an application can be brought, provided the cause of action has arisen afresh and subsequent to the compromise in question. The terms of the compromise were that the husband will take the wife to Aligarh with him and keep her comfortably and live a chaste life. The fresh application was brought asserting that after the earlier proceedings terminated, the husband upto the date of the application neither called the wife, nor kept her with him, nor provided her with messing or clothes and rather contrary to the terms he continues to have illicit relations with other girls. In reply to such averments it was stated in the written statement that the husband has always been trying to call the wife, but the wife herself was not ready to come. It was further stated that the letters written in that connection were filed. It was, further, stated in the prayer part that the father of the present opposite party wanted to re-marry the opposite party and has also developed illicit relations with her and for that reason the wife, i.e., the present opposite party, is not willing to live with the present applicant. It was further stated that the notice was given to the wife and that the husband''s elder brother had gone to fetch the wife, but she declined to come. It is also noteworthy that the further recital in this paragraph is that the father of the wife has developed a practice and tendency to first have iilicit relations with the daughters by misleading them and then re-marry them.

The applicant, namely, the husband neither appeared himself in the witness box, nor produced his brother, nor proved any letter to substantiate his contention. On the other hand the wife examined herself as well as her father Chheda Lal. The latter corroborating the wife of the applicant has deposed that he went several times and advised the applicant, but the applicant kept ignoring such advices and finally told that as the present opposite party objects to applicant''s relation with one Sarojni, he will not keep her. The law is well settled that when there is any unrepelled and uncontroverted statement on oath, the Court must believe it. When that is the position, the argument that any subsequent cause of action did not arise has no force. The refusal to keep the wife after the compromise and neglect to maintain her after the compromise would entitle the wife to move fresh application and seek maintenance u/s 125(1) Code of Criminal Procedure. It is not disputed that the husband has sufficient monthly income as pay and dearness allowance. It is also shown that the wife has no means to maintain herself. Reliance was placed by the learned Counsel for the applicant on the case of Bundoo v. Smt. Mehrunnisa 1978 ACR 365. The facts of this case are distinguishable. I have already discussed the facts. If inspite of compromise the husband declines to keep the wife, that would amount cruelty. I may also observe that nothing can be a greater torture to any wife than to attribute her unchastity to the limit that she is having Illicit relations with her father.

The next point that is urged is that the court should have recorded his satisfaction before proceeding ex-parte in the case. It is also urged that it is not necessary to apply the proviso of Section 126(2) Code of Criminal Procedure independently and the order itself would be considered bad on account of non-compliance of Section 126(2) Code of Criminal Procedure. Reliance in support of such argument has been placed upon State v. Bhimrao AIR 1963 Mys 239, in which it has been held that the Magistrate should record the satisfaction as required u/s 126(2) Code of Criminal Procedure, and if he does not do so, the order will be bad. That was a case of revision and the High Court interfered and set aside the order. The case again referred to the matter of service of process. It was not a case where the party concerned was duly served and had even put in appearance and filed written statement and then absented himself. Reliance has further been placed upon the case of P.M. Doddiah v. Smt. Sulochanamma 1978 CriJ 294 Karnatak. What has been held in that case is that the party can move to have the ex-parte order set aside only if the case proceeded ex-parte under the first part of the proviso to Section 126(2), namely, that wilful avoidence of service, and in case of neglect to attend the court the remedy is by way of revision. The facts are not known, but it is noteworthy that in this vary case relying upon a case reported in 1978 CriJ 165 SC, it was observed that inherent powers would not be exercised.

Reliance was also placed by the learned Counsel for the applicant upon the case of Najmul Hasan v. Noor Jahan 1980 ACC 66. I fail to appreciate how this ruling helps the applicant. The application u/s 482. Code of Criminal Procedure, was dismissed in that case. It was observed that it is the revisional court which could make any interference and the Court exercising powers u/s 482, Code of Criminal Procedure will not substitute its discretion instead that of the revisional court. In the present case whatever matters have been raised here could have been very well urged before revisional Court when revision was filed. The applicant should have pursued all the points, now urged, before that court as to invite decisions, which was not done and the applicant rather absented.

As regards Mysore pronouncement, there is a pronoucement of Calcutta High Court report in the case of Osmac Gahi v. Tahurannessa 1970 CriLJ 684 olding that where any party put in appearance and also file written statement, there is no question of his wilfully neglecting to attend the case. It is a case of ex-parte decision, after the party has put in appearance.

As to whether the matter of proceeding ex-parte suffered with any illegality or irregularity is a question which could have been again very well raised before the court of revision, to which court records are also available. If any party does not avail of that remedy, the Court will not exercise the inherent powers in his favour.

Apart from that, I have laid down the facts of the case and it will be a needless prolongation of the proceedings by making any remand. The conduct of the husband, as is borne out by his written statement itself imputing unchastity to the wife and even going to the extent of alleging that she is having illicit relations with her father, is such that would disentitle the applicant to claim the exercise of any inherent powers of this Court.

In the result, the application is rejected.