ABDUL WAHID HASIM SAHEB v. SODARA BAI ALIAS SUNDARA BAI
1977-01-25
LAL
body1977
DigiLaw.ai
( 1 ) THIS criminal petition presumably under Sec. 482 of the Crlpc is directed against the decision of the Addl Sessions Judge, Bijapur, confirming in revision the order of the Judicial Magistrate, First Class, Badami granting maintenance to the respondent under S. 125 of the Crlpc. The admitted facts in the case are; that the respondent was married to the petitioner and out of the wedlock a daughter by name Jakiyar Sultana was born. Subsequently, the petitioner illtreated the wife and even divorced her. Thereafter she started living with her parents. The petitioner is a Urdu Teacher in a local school and according to respondent he gets a salary of Rs. 400 p. m. Since the petitioner refused and neglected to maintain his divorced wife the respondent filed the petition before the magistrate under S. 125 of the Crlpc and claimed Rs. 200 p. m. as maintenance for herself and for her daughter. ( 2 ) THE petitioner resisted the claim and denied that any ill-treatment was meted out to the respondent. He affirmed that the respondent was divorced by him and that he subsequently remarried another woman by name Hajarabi. It was asserted that the respondent was not entitled to any maintenance. ( 3 ) THE learned Magistrate considered the case on merits and held that the respondent was entitled to Rs. 50 p. m. for herself and that her daughter was entitled to Rs. 25 p. m. as maintenance from the petitioner. Against that decision of the learned Magistrate, the petitioner came in revision before the learned Sessions Judge, but did not succeed. Now he has filed the present criminal petition under S. 482 of the Crlpc against the two orders of the Magistrate and the Sessions Judge. ( 4 ) IT was contended in the forefront that the petition under S. 482 of the Crlpc, will not be maintenable when obviously a second revision is prohibited under 3. 397 (2) of the Crlpc. In order to invoke the inherent jurisdiction of the Court an abuse of process of any Court or an order otherwise to secure ends of justice are prior conditions to be satisfied. For this it was rather essential for the petitioner to point out if the two orders of the Courts below are illegal or prima facie incorrect in any manner.
For this it was rather essential for the petitioner to point out if the two orders of the Courts below are illegal or prima facie incorrect in any manner. If upon the facts alleged and proved a reasonable view could be taken that the respondent was entitled to maintenance and the amount of maintenance awarded was rightly assessed that would be an end to the matter. It would be difficult to hold that any abuse of the process of the court resulted or inherent jurisdiction is to be exercised to secure ends of justice. In that contingency, perhaps, the prohibition contained in the code for a second revision will be violated without any sufficient reason, ( 5 ) THE learned Counsel for the petitioner raised a contention with reference to Sec. 127 (2) of the Crlpc and asserted that in the year 1970 a Civil Court decree was refused to the respondent for maintenance. In that suit, it was stated, the respondent claimed maintenance. The petitioner pleaded divorce and it was held by the Civil Court that a divorced wife was not entitled to maintenance. The learned Counsel submitted that the said decree should have stood in the way of the respondent from claiming maintenance under S. 125 of the Crlpc. It is significant that the said contention was never raised by the petitioner at any time before. It was neither raised before the learned Magistrate nor before the learned sessions Judge. This plea was not even contended in the grounds taken in the petition. The learned Counsel, however, stated that the plea being legal could be raised at this stage. The learned Counsel for the respondent vehemently opposed this contention on the part of the petitioner. ( 6 ) SEC. 127 of the Code, prima facie applied to a situation after the passing of the order by the Magistrate under S. 125. It is for the Magistrate to make an alteration in allowance within the meaning of that Section and in that context it is laid down in sub-sec (2) of that Section that such alteration either by way of cancellation of the order made under s. 125 or by way of variation in that order to the claim of maintenance can be made by the Magistrate.
( 7 ) A cancellation or variation as contemplated in sub-sec (2) of s. 127, with reference to the order made by the Magistrate under S. 125 does not include a case disentitling a divorced wife to claim maintenance when that right is specifically conferred upon her under Sec. 125. ( 8 ) IN this view of the matter, I do not find any legitimate ground to interfere with the two orders made by the Courts below. Therefore, the petition deserves to be dismissed. --- *** --- .