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1977 DIGILAW 40 (MAD)

Abdul Wahid Hasim Saheb Bailiff v. Sodara BaialiasSundara Bai

1977-01-25

D.B.LAL

body1977
Order.- This criminal petition, presumably under section 482 of the Code of Criminal Procedure is directed against the decision of the Additiona1 Sessions Judge, Bijapur, confirming in revision the order of the Judicial Magistrate, First Class, Badami granting maintenance to the respondent under section. 125 of the Code of Criminal Procedure. 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 ill-treated 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 per month. Since the petitioner refused and neglected to maintain his divorced wife the respondent filed the petition before the Magistrate under section. 125 of the Code of Criminal Procedure, and claimed Rs. 200 per month as maintainance 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 per month for herself and that her daughter was entitled to Rs. 25 per month 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 section 482 of the Code of Criminal Procedure against the two orders of the Magistrate and the Sessions Judge. 4. It was contended in the foremost that the petition under section 482 of the Code of Criminal Procedure, will not be maintainable when obviously a second revision is prohibited under section. 397 (2) of the Code of Criminal Procedure. 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 section 127 (2) of the Code of Criminal Procedure 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 section. 125 of the Code of Criminal Procedure. 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 t;ken 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. Section 127 of the Code, prima facie applied to a situation after the passing of the order by the Magistrate under section 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. subsection. (2) of that section, that such alteration either by way of cancellation of the order made under section. 125 or by Way of variation in that order to the claim of maintenance can be made by the Magistrate. 7. subsection. (2) of that section, that such alteration either by way of cancellation of the order made under section. 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-section (2) of section 127, with reference to the order made by the Magistrate under section. 125 does not include a case of disentitling a divorced wife to claim maintenance when that right is specifically conferred upon her under section 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.