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1996 DIGILAW 374 (ORI)

ARUN KUMAR SWAIN v. SUDESHNA SWAIN

1996-12-16

DIPAK MISRA

body1996
JUDGMENT : Dipak Misra, J. - In the present application challenge is to the judgment passed in Criminal Revision No.6 of 1988 by the learned Sessions Judge, Ganjam, Berhampur whereby the revisional Court affirmed the order passed by the learned S.D.J.M., Bhanjanngar in Misc. Case No.5 of 1986 allowing the application preferred u/s 125 of the Code of Criminal Procedure (in short the Code') invoking the inherent jurisdiction of this Court. 2. The facts giving rise to the present application are that opposite party instituted a proceeding u/s 125 of the Code claiming maintenance at the rate of Rs.500/ - per month from the petitioner alleging that her marriage was solemnised in the month of Falguna, 1979 according to Hindu Customs and tradition, but after five months of the marriage the petitioner had deserted her. The petitioner entered appearance, filed his objection resisting the claim of the wife and denied his liability to pay the maintenance on the ground that she had voluntarily deserted him, and she has sufficient means to maintain herself. The petitioner remained absent and was set ex parte on 25.9.87. The case stood adjourned to 15.10.87, then to 23.10.87, and thereafter to 26.10.87 when the opposite party wife adduced evidence. On the next date the impugned order granting maintenance at the rate of Rs.250/- per month was passed. On 27.11.87 the petitioner filed an application for restoration of the case and for grant of an opportunity to adduce evidence. However, he allowed the said application to be dismissed for default on 23.11.87. Thereafter he preferred criminal revision before the learned Sessions Judge, as indicated before, challenging the order passed by the learned S.D.J.M., Bhanjanagar granting maintenance in favour of the wife-opposite party. Before the learned Sessions Judge a singular contention was raised that the order setting him ex parte and adjudicating the lis without his presence was unjustified and he was entitled to another opportunity to put forth his version. The said submission did not find favour with the revisional Court and accordingly the revision was dismissed. 3. Mr. Paiida, learned counsel for the petitioner has assailed the aforesaid orders by contending that on the date fixed, due to unforeseen circumstances and for no laches of his own, the husband-petitioner could not participate in the proceeding and, therefore, under compelling circumstances, he has to suffer the impugned order. 3. Mr. Paiida, learned counsel for the petitioner has assailed the aforesaid orders by contending that on the date fixed, due to unforeseen circumstances and for no laches of his own, the husband-petitioner could not participate in the proceeding and, therefore, under compelling circumstances, he has to suffer the impugned order. He has canvassed that in the peculiar facts and circumstances an opportunity should be granted to the petitioner so that he can adduce evidence and appropriately resist the claim of the opposite party herein. Inspite of notice opposite party has not entered appearance. This Court has appointed Mr. Sangram Kishore Nayak as Amicus Curiae. The learned Amicus Curiae has supported the orders passed by the Courts below. He has submitted that the petitioner has conducted himself in an extremely recalcitrant manner and does not deserve indulgence of this Court in an application where inherent jurisdiction is sought to be invoked. 4. The petitioner after his unsuccessful journey to the Court of Session, has approached this Court u/s 482 of the Code. True it is, a proceeding u/s 482 before this Court is maintainable though a person has availed the remedy of revision u/s 399 of the Code. But there is certain distinction between the revisional jurisdiction and the inherent jurisdiction. This Court in the case of Basudev Bhoi Vs. Bipadabhanjan Puhan and Another, has held as under:- Thus, it becomes crystal clear that there is a fine but real distinction between the revisional jurisdiction and inherent power. In fact, the apex Court in the case of Ganesh Narayan Hegde (supra) has carved out a synthesis by taking note of section 399 of the Code and the concept of inherent powers. It may be stated here that the power u/s 482 was directly in issue in the case of Ganesh Narayan Hegde. Taking into consideration the distinctive view of operation of the powers and the ratio of the decision it can be safely concluded that an application u/s 482 of the Code is maintainable though a person has availed the remedy of revision u/s 399 of the Code. But the parameter? of Section 482 have always to be kept in view. The present application is to be tested with the aforesaid touchstone. But the parameter? of Section 482 have always to be kept in view. The present application is to be tested with the aforesaid touchstone. The learned Sessions Judge in his order has observed that the petitioner had already availed nine adjournments for hearing and the case was adjourned to 15.10.86, then to 23.10.87 and thereafter to 26.10,87 for hearing. He has also indicated that on 25.9.87 the petitioner had prayed for an adjournment on the ground of illness of his advocate, but factually such averment was erroneous. In the petition for adjournment it has been stated that the petitioner was not in a position to attend the Court as he had met with an accident and was undergoing medical treatment. The revisional Court has considered the grounds taken in the revision petition and the status of the petitioner (a government employee), and on consideration of those factual aspects, on analysis of the totality of the circumstances on scrutiny of the materials on record and on appreciation of the conduct of the husband-petitioner the learned Sessions Judge has rejected the revision petition. Mr. Parida has canvassed with vehemence that the findings of the learned Sessions Judge are not based on proper appreciation of materials on record and the said findings have been arrived on being swayed away by the conduct of the petitioner though there is no reason to do so. Be that as it may, the final conclusion reached by the learned Sessions Judge cannot be said to be perverse or contrary to the established or settled position of law. There shall be miscarriage of justice of the said order is sustained. 5. A pious duty is cast on the husband to look after the wife. He has moral as well as legal obligation. It is his bounden duty to see that the wife lives with dignity. When an application for grant of maintenance is filed by the wife, the husband should not make adroit attempts to defeat the application by adopting the method of unruly procrastination. A proceeding of this nature has to be disposed of as expeditiously as possible. The Court is not expected to give indulgence to a scheming husband. A recalcitrant husband is also not to be allowed to linger the proceeding by taking recourse to procedural subterfuges. A proceeding of this nature has to be disposed of as expeditiously as possible. The Court is not expected to give indulgence to a scheming husband. A recalcitrant husband is also not to be allowed to linger the proceeding by taking recourse to procedural subterfuges. There should be a fair contest and the obligation is to be determined once the pre-requisite or pre-conditions for grant of maintenance are satisfied. The very essence of this adjudication is to prevent vagrancy and to make provision for helpless wife, deserted children and destitute parents. The quality of this provision is to provide speedy and efficacious remedy to the wife who is not expected to lead the life of a church mouse. Any attempt by the resisting party to annihilate the purpose of this summary proceeding has to be nipped in the bud. The Court has the duty to control the proceedings in a fair manner so that dilatory tactics are not taken recourse to and parties subjugate themselves to the strict discipline of the Court. The mandate has to be maintained meticulously. In the instant case, as indicated earlier the petitioner has to suffer for his own laches and in absence of any cogent reasons satisfying the criteria for invoking the inherent jurisdiction of this Court, there is no reason to upset the orders of the Courts below. 6. Resultantly, the criminal misc. case is dismissed.