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1998 DIGILAW 312 (ORI)

PAUL NAIK v. SASMITA PRADHAN ALIAS NAIK

1998-09-03

P.K.MISRA

body1998
JUDGMENT : P.K. Misra, J. - This is an application u/s 482 of the Code of Criminal Procedure (hereinafter referred to as "Code of Criminal Procedure"). 2. Opposite Parties 1 and 2 filed Misc. Case No. 90 of 1991 in the Court of the Judicial Magistrate, First Class, G. Udayagiri, claiming maintenance. It was alleged that the present opposite party No. 1 is the wife of present Petitioner and the present opposite party No. 2 is their child. The present Petitioner in his objection denied about the alleged marriage with the present opposite party No. 1 and on the other hand, stated that prior to the alleged marriage with the present opposite party No. 1, he had married one Hemabati Digal. The Magistrate on consideration of the evidence on record found that the present opposite party No. 1 is the married wife of the present Petitioner and directed that the present Petitioner should pay a sum of Rs. 200/- as maintenance to the present opposite party No. 1 and Rs. 100/- to the present opposite party No. 2 per month. Against the aforesaid order of the Magistrate, the present Petitioner C.R.P. No. 81 of 1993. The said petition was dismissed by the Sessions Judge. Thereafter, the Petitioner has filed this application u/s 482, Code of Criminal Procedure, challenging the legality of the order of the Magistrate as confirmed by the Sessions Judge. 3. Section 397(3), Code of Criminal Procedure bars a second revision. It is not the intention of the law that where there is a bar of second revision that bar can be overcome by simply filing an application u/s 482, Code of Criminal Procedure of course, the Court in a fit case can exercise jurisdiction u/s 482, Code of Criminal Procedure, notwithstanding the fact that a revision or a second revision is not maintainable. However, such interference must be in exceptional cases where manifest illegality has been committed resulting in miscarriage of justice. In the present case, the Magistrate after appreciating the evidence on record has found that there was a marriage between the present petition and opposite party No. 1 and has discarded the story of earlier marriage with another lady. However, such interference must be in exceptional cases where manifest illegality has been committed resulting in miscarriage of justice. In the present case, the Magistrate after appreciating the evidence on record has found that there was a marriage between the present petition and opposite party No. 1 and has discarded the story of earlier marriage with another lady. These findings are essentially findings of fact, not available to be challenged in a revisional Court far less in a proceeding u/s 482, Code of Criminal Procedure As a matter of fact, the revisional Court in the present case has referred to the materials on record and confirmed the order of the Magistrate. In such view of the matter, there is hardly any scope for interference in a proceeding u/s 482, Code of Criminal Procedure 4. The learned Counsel for the Petitioner has submitted that since the Petitioner was earlier married to another lady, direction regarding the payment of maintenance to present opposite party No. 1 would not be in the interest of justice and the Petitioner would be harassed if he is required to pay maintenance to opposite party No. 1. Needless to point out that the Petitioner is not remedyless in the matter. The Petitioner has challenged the status of opposite party No. 1 as the legal married wife of the Petitioner. Law is well-settled that the finding of the Magistrate and the revisional Court (Sessions Judge or the High Court, as the case may be) is not final in the matter relating to alleged status as husband and wife. The Petitioner claims that he has already married to another lady. Therefore, if in a properly constituted suit it is established that the Petitioner has not married the present opposite party No. 1 or prior to the marriage with opposite party No. 1, the Petitioner was already married to another lady who was living at the time of subsequent marriage, the subsequent marriage would be void and the direction regarding payment of maintenance would be inoperative. 5. In view of the aforesaid discussion, I do not find any merit in this petition, which is accordingly dismissed. It is however, made clear that the findings recorded by the Magistrate or by the revisional Court and the dismissal of the present petition would not stand in the way of the Petitioner in filing appropriate suit seeking appropriate relief. Final Result : Dismissed