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1983 DIGILAW 199 (ALL)

Rajendra Singh v. Shakuntala Devi

1983-03-07

R.A.MISRA

body1983
JUDGMENT R.A. Misra, J. - This petition u/s 482 of the Code of Criminal Procedure has been filed by Sri Rajendra Singh with the prayer that the order dated 4th of February 1981 passed by 10th Additional Sessions Judge Agra and the order dated 8-8-80 passed by Judicial Magistrate 1st Class Agra u/s 125 Code of Criminal Procedure be set aside and the application of Smt. Shakuntala Devi Respondent u/s 125 Code of Criminal Procedure be dismissed. 2. The facts which have given rise to this petition are briefly put as below: Smt. Shakuntala Devi Respondent is legally wedded wife of the Petitioner Rajendra Singh. They were married on 9-5-75. Thereafter they lived together happily till Smt. Shakuntala Devi came to know that Rajendra Singh Petitioner had previously married one Smt. Lalita Devi and they had a son born on 28th of October 74. The fact that the Petitioner had a legally wedded wife when he married the Respondent was concealed when he married Smt. Shakuntala. She, therefore, moved an application for maintenance u/s 125 Code of Criminal Procedure. The Petitioner contested the application on the ground that Smt. Lalita Devi was not his legally married wife but happened to be his neighbour and as a neighbour he carried Smt. Lalita Devi to hospital when she delivered a child. It was just by mistake that his name was written as father of the child born to Smt. Lalita Devi. He further pleaded that the Respondent Smt. Shakuntala Devi had her own friends and that was the actual reason why she was not willing to live with him as his wife. Smt. Shakuntala Devi examined herself and produced Dal Chand (PW2), Nathoo (PW3), Jummu (PW4) and Smt. Lalita Devi (PW5) in support of her application. The Petitioner Rajendra. Singh examined herself and produced Bhagwan Singh (DW2) and Dhanpal Gautam (DW 3). The learned Magistrate on a consideration of the aforesaid evidence and after hearing submissions of both the parties arrived at the conclusion that Smt. Lalita Devi is closely connected with the Petitioner though their legal marriage is not proved and that the Petitioner has turned the Respondent out of his house after harassing her. The learned Magistrate further believed that the monthly income of the Petitioner was Rs. 500/-. Consequently he directed him to pay Rs. 150/- p.m. as maintenance to the Respondent. The learned Magistrate further believed that the monthly income of the Petitioner was Rs. 500/-. Consequently he directed him to pay Rs. 150/- p.m. as maintenance to the Respondent. He felt aggrieved and went in revision in the court of Sessions at Agra. The revision has been dismissed on 4th of February 81 hence this petition u/s 482 of the Code of Criminal Procedure. 3. I have heard learned Counsel for both the parties and have gone through the record. Smt. Shakuntala Devi Respondent No. 2 is admittedly a legally wedded wife of the Petitioner. Both the courts below have arrived at the conclusion that she is entitled for the maintenance. It has been argued by the learned Counsel for the Petitioner that the Respondent has not alleged in her application u/s 125 Code of Criminal Procedure that she is unable to maintain herself and that in the absence of any such allegation in the application itself, she is not entitled to maintenance u/s 125 Code of Criminal Procedure. The learned Judge has noted in his judgment that in para 9 other application she has mentioned the fact that she is living with her mother and her mother was unable to maintain her. The Petitioner's plea that the Respondent was a trained nurse and that she was able to maintain herself was not believed by the courts below. I agree with the view taken by the learned Sessions Judge that para 9 of the application u/s 125 Code of Criminal Procedure by implication did disclose the fact that Smt. Shakuntala was unable to maintain herself and her mother was also not able to maintain her. The Petitioner followed the plea taken by Smt. Shakuntala and contested the application on the ground that she was able to maintain herself, being a trained nurse. It therefore leaves no room for doubt that while contesting the application of Smt. Shakuntala the Petitioner was aware of the fact that she is claiming maintenance on the ground that she is unable to maintain herself and to meet that ground he did take the counter plea that she was actually able to maintain herself as she happened to be a trained nurse. It is therefore not open to the Petitioner to assert at this stage that Smt. Shakuntala Devi did not mention in her application that she was unable to maintain herself. It is therefore not open to the Petitioner to assert at this stage that Smt. Shakuntala Devi did not mention in her application that she was unable to maintain herself. It is abundantly clear that the point whether she was or was not able to maintain herself was contested before the court of Magistrate and as observed above it is not open to the Petitioner to assert at this stage that there has been abuse of the process of the court or miscarriage of justice because the maintenance has been granted inspite of the fact that in her application Smt. Shakuntala Devi did not clearly mention that she was not able to maintain herself. In Bishambhar Dass Vs. Smt. Anguri and Another, (1978) AWC 25 it has been held: Under Section 125(1)(a) Criminal Procedure Code maintenance allowance cannot be granted to every wife who is neglected by her husband and her husband refuses to maintain her but can only be granted to a wife who is unable to maintain herself. In the present case the wife has not mentioned in her petition that she is unable to maintain herself. In her statement also she did not say so. All that she said was that she was maintaining herself with some difficulty. This is not tantamount to her being unable to maintain herself. The facts of the case cited above are clearly distinguishable from the facts of the case before me. In the present case the point whether Shakuntala Devi was unable to maintain herself was contested by the Petitioner and as observed above it is abundantly clear that the Petitioner was aware of the fact that she asserts that she is unable to maintain herself and claims maintenance on that ground vide para 9 of her application u/s 125 Code of Criminal Procedure. Both the courts below have fully considered this point and have given their findings in favour of the Respondent. The trial court has considered the evidence produced by the parties and has given good reasons in his detailed judgment for arriving at this conclusion. The learned Sessions Judge has considered all the points raised before him in revision. The findings of the trial court is that the monthly income of the Petitioner is Rs. 500/- and the Respondent is entitled to Rs 150/- p.m. as maintenance. The learned Sessions Judge has considered all the points raised before him in revision. The findings of the trial court is that the monthly income of the Petitioner is Rs. 500/- and the Respondent is entitled to Rs 150/- p.m. as maintenance. I see no reason in the least to interfere with these findings of fact based on evidence on record and that too in exercise of the power u/s 482 Code of Criminal Procedure. Interference in the order passed by courts below is not at all required either to prevent the abuse of the process of the court or to secure the ends of justice. In the result the petition u/s 482 Code of Criminal Procedure shall fail. 4. The petition is dismissed.