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Rajasthan High Court · body

1997 DIGILAW 1367 (RAJ)

Dev Ji v. Mani

1997-11-19

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned counsel for the non-petitioner. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 31.3.1997 passed by the learned Sessions Judge, Dungarpur in criminal revision No. 54/96 (decided along with criminal revision No. 49/96) where he allowed the criminal revision No. 54/96 and dismissed the criminal revision No. 49/96 and allowed the maintenance of Rs. 300/- per month to the non- petitioner Smt. Mani with effect from 1990 which was the date of filing of the application. (3). The learned counsel for the petitioner has submitted that the findings of the learned Judicial Magistrate as well as of the learned Sessions Judge regarding the point of marriage is not supported by the record. Regarding marriage the learned counsel for the petitioner has submitted that the petitioners case is that he was never married to Smt. Mani and, therefore, there is no subsisting relationship of husband and wife and between the petitioner and the non-petitioner. It is also submitted by him that before the order of maintenance allowance under Section 125 Cr.P.C. could be pressed it was necessary for the Judicial Magistrate to have applied his mind to the question whether the applicant (Mani) was unable to maintain herself and to the question whether the petitioner (non-applicant) Devji has sufficient means to pay the maintenance allowance under Section 125 Cr.P.C. Since these two questions have not been properly considered the order dated 24.9.1996 passed by the learned Judicial Magistrate and the order dated 31.3.97 passed by the learned Sessions Judge, Dungarpur are contrary to law and amount to abuse of the process of the Court. It is also submitted by the learned counsel for the petitioner that in exercise of the discretion conferred by sub-sec. (2) of Section 125 Cr.P.C. the learned Judicial Magistrate granted maintenance allowance with effect from September, 1996 i.e. the month in which the order of maintenance allowance was passed and the learned Sessions Judge has not assigned any reasons for directing that the maintenance allowance shall be paid from the date of application, and therefore, the order passed by the learned Sessions Judge in this behalf is contrary to law and deserves to be quashed and set aside. (4). (4). The learned counsel for the non-petitioner has supported the order passed by the learned Sessions Judge as well as the order passed by the learned Judicial Magistrate and submitted that in fact Smt. Mani is the legally wedded wife of the petitioner and she has sufficient cause for not living with the petitioner and that she is unable to maintain herself and the petitioner is in a position to pay maintenance allowance and, therefore, the grant of maintenance allowance to her is inaccordance with the provisions of Section 125 Cr.P.C. Regarding the order of the learned Sessions Judge with effect from date of application, the learned coun- sel for the non-petitioner has supported the order of the learned Sessions Judge. (5). The learned counsel for the non-petitioner has raised another objection which is to be the effect that this petition though purporting to be covered by Section 482 Cr.P.C. is in fact a second revision petition under Section 397 IPC and is, therefore, barred by section 397(3) Cr.P.C. and deserves to be rejected on that ground. (6). I have carefully considered the arguments advanced by both the parties. There is no dispute about the proposition that second revision petition is barred by Section 397(3) Cr.P.C. It is further well established that the powers of the High Court under Section 482 Cr.P.C. have not been taken away either expressly or by implication and have been preserved so that as and when necessary inherent powers can be exercised for the purposes mentioned in the Section. This leads to the conclusion that the scope of Section 482 Cr.P.C. and Section 397 Cr.P.C. cannot be treated to be identical. The purpose for which power under Section 482 Cr.P.C. has been conferred on the High Courts is three fold. The first object which inherent power can be exercised is to give effect to any order under the Criminal Procedure Code. The second object is to prevent abuse of the process of the Court. And the third object is to secure ends of justice as indicated by the words ``or otherwise to secure ends of justice. The first object which inherent power can be exercised is to give effect to any order under the Criminal Procedure Code. The second object is to prevent abuse of the process of the Court. And the third object is to secure ends of justice as indicated by the words ``or otherwise to secure ends of justice. Any object which is not covered by Section 482 Cr.P.C. is, therefore, outside the purview of Section 482 Cr.P.C. It is well established that powers under this Section should be exercised by the High Courts in exceptional cases lest Section 482 Cr.P.C. is converted into a substitute for the provisions relating to revision or appeal. In view of this position of law the present petition is maintainable for the limited Purposes mentioned in Section 482 Cr.P.C. (7). The most important question in the case is whether the petitioner is legally wedded husband of the non-petitioner. Non- petitioners case is that she is legally wedded wife of the petitioner and this averment is controverted. Both the parties have produced evidence before the learned Judicial Magistrate and learned Judicial Magistrate as well as the learned Sessions Judge have considered the evidence. Unless the findings of the learned Judicial Magistrate and of the learned Sessions Judge can be said to be so perverse as to occasion the failure of justice any inter- ference by this Court under Section 482 Cr.P.C. would not be justified. Even in those cases where this Court may take a different view from the view taken by the lower Court. The orders of lower Court cannot be interferred if the view taken by the lower Court be said to be a reasonable one. (8). The burden to prove that the non-petitioner was legally wedded wife of the petitioner was undoubtedly on the non- petitioner. She has examined herself on oath and also examined her brother and one other person to prove that her marriage with the petitioner had been solemnised according to Hindu customs. The petitioner (Devji) examined himself as well as Nathulal and Belji. Parties to the marriage are the persons having personal knowledge about the alleged marriage. Their evidence is, therefore, the best evidence in the case. All other evidence may be necessary for corroboration or for contradiction. The petitioner (Devji) examined himself as well as Nathulal and Belji. Parties to the marriage are the persons having personal knowledge about the alleged marriage. Their evidence is, therefore, the best evidence in the case. All other evidence may be necessary for corroboration or for contradiction. The non- petitioner in her statement has stated that her marriage with Devji had been celebrated according to Hindu rites and unless this statement is found to be totally false it cannot be said that the learned Judicial Magistrate and the learned Sessions Judge had committed any error of law or have taken any reverse view by relying on evidence produced by her. In the instant case, I do not, find any reason to take a contrary view. In such cases where the question in dispute is to be decided in a definite manner it is necessary that the evidence should be considered with a view to find out what is the truth of the matter. Since there is no reason to interfere with the finding regarding the factum of marriage given by the lower Courts, I find no justification to interfere with that finding under Section 482 Cr.P.C. (9). It has come on record that the petitioner (Devji) has celebrated another marriage with a woman known as Jyoti. In view of his first marriage with the non- petitioner the marriage with Jyoti must be regarded as second marriage and it can be said without hesitation that the non-petitioner has sufficient cause for living separately from the petitioner. As regards the inability of non-petitioner to maintain herself while living separately from the petitioner, it is common knowledge that amount the Hindus, wife goes to the house of husband and becomes economically dependent upon him unless of course she is in employment or has her own business or property. In the instant case there is nothing to show that she is employed or is having own business or any property of her own to maintain herself. Circumstances appearing in the case constitute the circumstantial evidence from which inferences may be drawn and are generally drawn. Having regard to all the facts and circumstances of the case, it is proper to infer that in the absence of proof that she is employed or is having her own business or is possessing property to maintain herself it should be inferred that she is unable to maintain herself. Having regard to all the facts and circumstances of the case, it is proper to infer that in the absence of proof that she is employed or is having her own business or is possessing property to maintain herself it should be inferred that she is unable to maintain herself. The last point to be considered by he lower Court was whether the petitioner was possessing sufficient means to maintain his wife. It is on record that before the peti- tioner lost his service he was gainfully employed. He belongs to joint family and according to the oral statement of Mani (PW- 1), petitioners father owns 30 bighas of agricultural land and the petitioner Devji possess 10 buffaloes and 4 oxen and he carries on business of selling milk and `ghee. Dhulji (PW-2) has supported the averment that petitioner owns 30 bighas of land, 10 buffaloes and 4 oxen. Hirji (PW-3) has given statement which support the non-petitioner in his behalf. In these circumstances it cannot be said that the lower Courts have committed any error in coming to the conclusion that the petitioner has sufficient means to pay maintenance allowance to his wife Smt. Mani. (10). As regards the quantum of maintenance the sum of Rs. 300/- per month is not excessive. Having regard to the fact that prices of commodities necessary for life are rising every day. (11). Regarding the submission that payment of maintenance allowance from the date of application should not have been ordered by the learned Sessions Judge unless there were cogent reasons for modifying the order passed by the learned Judicial Magistrate, It has been submitted, that it was necessary for the learned Sessions Judge to give some reasons for awarding maintenance allowance from the date of the application when the learned Judicial Magistrate directed payment of maintenance allowance with effect from the month of the order. I have considered the matter. The object of maintenance allowance under Section 125 Cr.P.C. is to provide subsistence allowance to the person who needs it urgently for the purpose of his/her maintenance. It is, therefore, obvious that the cause of action so far as maintenance allowance is concerned accrues as soon as the entitlement to get the maintenance allowance is created in favour of the person, according to law. It is, therefore, obvious that the cause of action so far as maintenance allowance is concerned accrues as soon as the entitlement to get the maintenance allowance is created in favour of the person, according to law. After the occurrence of the cause of action a party has to approach the compe- tent Court by filing of the application for grant of maintenance allowance and the Court has to pass orders after hearing the parties. According to civil law rights and liabilities occur on the day of cause of action. Section 125(2) Cr.P.C., however does not permit grant of maintenance allowance for the period before the filing of the application. But on a careful reading of Section 125(2) Cr.P.C. it can be said without hesitation that the well established propositions of civil laws are not intended to be altered by Section 125(2) Cr.P.C. Section 125(2) Cr.P.C. In other words the applicants right to get the maintenance allowance from the day the cause of action occurred and in any case the maintenance allowance is recoverable with effect from the date of application filed under Section 125 Cr.P.C. The disposal of the application may be delayed for several reasons. It would be unjust and unfair to infer that the legislature intended that during the period the application remains pending the maintenance allowance should be denied to the applicant. In view of this, I am, of the opinion that the normal rule should be that the maintenance allowance should be given from the date of application and denial of maintenance allowance for the period commencing from the date of filing of the application from the date of order though permitted by law would require reasons to be given for depriving the destitute applicant of the benefit of getting maintenance allowance underSection 125 Cr.P.C. In other words reasons would be necessary for denying the main- tenance allowance for the aforesaid period rather than for granting maintenance allowance. Viewed in this light order of granting maintenance allowance from the date of filing application is not unfair or unjust. (12). For reasons mentioned above, I do not, find any force in the petition it deserves to be dismissed and is hereby dismissed. If the petitioner still claim that he is not the legal husband of the non-petitioner he may file a suit for declaration in the competent Court.