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1979 DIGILAW 443 (ALL)

Dhanwanti Devi v. Singhasan Singh

1979-04-10

P.N.BAKSHI

body1979
JUDGMENT P.N.Bakshi 1. An application was filed by Smt. Dhanwanti Devi claiming maintenance-allowance far herself and her two daughters Prern Lata and Hem Lata on the ground that she was legally wedded wife of Singhasan Singh and that the latter had neglected and failed to maintain her. She has no means of livelihood. The husband Singhasan Singh denied his liability to maintain Smt. Dhanwantii. He alleged that she was living an adulterous life and that Hem Lata was not his daughter, but was the off spring of the adulterous connection between Dhanwanti and one Chhabinath. The trial court on a consideration of the evidence on the record came to the conclusion that the allegations of adultery made by Singhasan Singh against his wife Dhanwanti Devi had not been proved. He awarded a maintenance allowance of Rs. 125/- in favour of Smt. Dhanwanti and her two daughters Aggrieved thereby a revision was filed before the Sessions Judge. This revision was dismissed on 4th September, 76, as not pressed. Thereafter a second revision was filed before him which has been allowed on 12th November, 76, hence this revision by Smt. Dhanwantii Devi and her daughters. 2. I have heard learned counsel for the parties, and have also perused the impugned order. The applicant's counsel has urged that the second revision filed before the Sessions Judge, by Singhasan Singh was not maintainable in law. On the other hand, learned counsel for the opposite parties, has urged that the dismissal of the first revision before the Sessions Judge was not on merits and therefore, the second revision was not barred. In this connection, the Sessions Judge has observed as follows:- "It may be noted that the first application was not pressed on the ground that one or two persons were left to be arrayed as parties to that revision application. It was, therefore, rejected as not pressed. That previous application was not rejected on merits." The Sessions Judge was, therefore, of the view that the second revision was not barred. 3. The point for consideration has to be dealt with from two angles. It was, therefore, rejected as not pressed. That previous application was not rejected on merits." The Sessions Judge was, therefore, of the view that the second revision was not barred. 3. The point for consideration has to be dealt with from two angles. If an application in revision had been made by any person, either to the High Court or to the Sessions Court, then under Section 397 (3) CrPC (new), "no further application by the same person shall be entertained by the other of them." This clearly means that if an application in revision has been filed before the Sessions Judge, then the High Court will not entertain another application in revision by the same person and vice versa. Mere reading of Section 397 (3) CrPC unmistakably indicates that it does not apply to a case where the second revision is filed before the same court i.e. if one revision application is filed before the Sessions Judge and subsequently the second revision application is also filed before the Sessions Judge. In such a contingency Section 397 (3) CrPC would not be applicable and we would have to take into consideration the other provisions of the Code of the Criminal Procedure in order to judge whether the second application in revision is maintainable or not. 4. Counsel for the applicant has relied upon a decision of the single Judge of this Court reported in 1976 ACC 245-Mohd. Haneef Khan v. Shamim Begum. The facts of that case disclosed that a revision application against the order of the trial court was filed at first before the Sessions Judge Shahjahanpur on 10-10-1975. Thereafter the same applicant filed a revision in the High Court on 17-11-1975. The applicant got his revision before the Sessions Judge, Shahjahanpur dismissed on 18- 2-1976, as not pressed. This court held on 17th May, 1976 while deciding the revision filed before it, that the second revision application by the same person in the High Court was not maintainable. The learned Judge also made an observation that merely because the first application before the Sessions Judge was dismissed as not pressed, this cannot empower the High Court to entertain the second revision. The learned Judge also made an observation that merely because the first application before the Sessions Judge was dismissed as not pressed, this cannot empower the High Court to entertain the second revision. From the facts above narrated, it is clear that the single Judge decision relied upon by the applicants would not apply to the facts of the present case, in so far as the bar of Section 397 (3) CrPC is concerned. The second aspect of the matter relates to the bar of Section 362 CrPC whereby once a court has signed its judgment or final order disposing off a case it has no power to alter or review the same, except to correct a clerical on arithmetical error. This question has now been decided by the Supreme Court in AIR 1979 SC 87 State of Orissa v. R. C. Agrawal. 5. Learned counsel for the opposite: parties has urged that the dismissal of a criminal revision as not pressed, does not satisfy the requirements of a judgment as defined in Section 354 CrPC. Section 354 CrPC (new) runs as; follows : "354. (1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353- (a) shall be written in the language of the court| (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision, (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced, (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty........ (6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145, or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision." 6. In the instant case there is no dispute that the first revision filed before the Sessions Judge was dismissed since it was not pressed. Under sub-section (6) of Section 354 CrPC a final order under Section 125 CrPC has to contain the point for determination, the decision thereon and the reasons for the decision. In the instant case there is no dispute that the first revision filed before the Sessions Judge was dismissed since it was not pressed. Under sub-section (6) of Section 354 CrPC a final order under Section 125 CrPC has to contain the point for determination, the decision thereon and the reasons for the decision. None of these requirements of a final order are to be found in a mere dismissal of a revision as not pressed. Therefore, such an order to my mind cannot be said to be a final order, passed in accordance with law so as to attract the application of Section 362 CrPC. Since it is not a final order, I do not find any reason why the second revision application should not be entertained by the Sessions Judge. In my opinion, therefore, the second revision was clearly maintainable in law. Coming now to the merits of the case, the position is that the trial court had recorded a finding that the allegations of Singhasan Singh imputing un- chastity to Smt. Dhanwanti Devi was not proved. Singhasan Singh had refuted that Hem Lata was his daughter. He characterized his wife as an immoral woman and his case was that Hemlata was born of an illicit connection between his wife and Chhabinath. This allegation has been found to be unproved. To my mind, this by itself is a sufficient ground for awarding maintenance allowance to the wife. The Sessions Judge had no jurisdiction to reappraise the evidence on the record and to reverse this finding of fact arrived at by the trial court. No illegality was committed by the trial court in recording this finding of fact and the Sessions Judge has exceeded his jurisdiction in setting it aside. Therefore, apart from the other aspects of the matter, which may make the husband liable to pay maintenance to his wife on the ground of neglect, a frivolous and false accusation of unchastity entitles Smt. Dhanwanti Devi to a maintenance allowance. It is true that the Magistrate has awarded an allowance of Rs. 125/- to Smt. Dhanwanti Devi and her two daughters, but that error can be rectified by this Court by directing that a maintenance allowance of Rs. 55/- shall be payable to Smt. Dhanwanti and an allowance of Rs. 35/- each shall be payable to the two daughters namely Km. Prem Lata and Hem Lata. 125/- to Smt. Dhanwanti Devi and her two daughters, but that error can be rectified by this Court by directing that a maintenance allowance of Rs. 55/- shall be payable to Smt. Dhanwanti and an allowance of Rs. 35/- each shall be payable to the two daughters namely Km. Prem Lata and Hem Lata. Singhasan Singh shall be liable for the payment of this amount since the date when the application for maintenance was filed by Smt. Dhanwanti and other. 7. For the reasons given above, I do not find any merit in this revision, which is hereby dismissed. Revision dismisses.