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1998 DIGILAW 669 (MP)

Varchand v. Varchand

1998-09-08

S.B.SAKRIKAR

body1998
S.B. Sakrikar, J. 1. The unsuccessful applicant/husband has directed this petition under Section 482, Criminal Procedure Code against the order dated 1.1.1998 rendered by the II ASJ Ratlam in Criminal Revision No. 116/97 thereby learned ASJ with some modification affirmed the order dated 10th September, 1997 passed by JMFC Alot in Misc. Cri. Case No. 52/96 granting maintenance @ 400/-per month in favour of Guddibai, wife of the present applicant. 2. Briefly stated that facts of the case are that the applicant and non-applicant are husband and wife. The non-applicant filed the petition in the Court of JMFC Alot against the appellant for grant of maintenance under Section 125, Criminal Procedure Code on the ground that the applicant after marriage ill-treated the non-applicant and deserted her. As such she is living separately from her husband alongwith her parents. It is also stated in the petition that after deserting the non-applicant, the applicant contracted second marriage with one Sangita, daughter of Laxman of village Bardia Goyal and as the non-applicant has not possessed sufficient means to maintain herself, she prayed for grant of maintenance under Section 125, Criminal Procedure Code. 3. The application filed by the non-applicant was opposed by the applicant denying the averments made by the non-applicant in her petition. Learned Magistrate on evaluating the evidence led by the parties has held that the applicant ill-treated the non-applicant Guddibai and deserted her without any reasonable cause and, thereafter, contracted second marriage with said Sangita and on this finding, granted maintenance @ Rs. 400/- per month from the date of the application in favour of the non-applicant. Aggrieved by the order of the trial Magistrate, the present applicant filed revision petition in the Court of II ASJ Ratlam. The order of the Magistrate was affirmed in revision with the modification in the order of the trial Magistrate that the maintenance was made payable from the date of the order. Aggrieved by the said order of ASJ the applicant has preferred this petition under Section 482 of the Code of Criminal Procedure. 4. The only contention of the Counsel for the applicant is that from the evidence on record it is not proved that the applicant ill-treated the non-applicant and contracted second marriage with one Sangita. Aggrieved by the said order of ASJ the applicant has preferred this petition under Section 482 of the Code of Criminal Procedure. 4. The only contention of the Counsel for the applicant is that from the evidence on record it is not proved that the applicant ill-treated the non-applicant and contracted second marriage with one Sangita. From the evidence it is established that the non-applicant on her accord without any reasonable cause left her matrimonial house and is living separately from her husband. In view of the evidence on record, the findings of Courts below are contrary to the evidence on record. The order or maintenance passed in favour of the non-applicant without any evidence is causing hardship to the applicant and in the facts and circumstances of the case, interference of this Court in exercise of powers under Section 482, Criminal Procedure Code is necessary. 5. Having heard the submissions of the Counsel for the applicant and on perusal of the record as also the evidence available on record, I do not find that the findings recorded against applicant with regard to ill-treating his wife and contracting second marriage with one Sangita cannot be considered to be perverse or contrary to the evidence available on record. The findings of Courts below are based on evaluating the evidence led on behalf of the parties. It is pertinent to note that after deserting his wife, the applicant has filed petition under Section 9 of the Hindu Marriage Act for grant of decree of restitution of conjugal rights against the non-applicant in the Court of I ASJ Ratlam and on his application Civil Suit No. 34A/ 98 was registered in the said Court. On perusal of the copy of the order dated 12.5.1998 it emerged that said application filed by the applicant under Section 9 of the Hindu Marriage Act was dismissed and the order of dismissal became final. This confirmed the fact that there is reasonable cause for the applicant to live separately from her husband. 6. The law is well settled on the point that this Court in rare cases interfers with the orders of lower Court in exercise of powers under Section 482, Criminal Procedure Code where Court is satisfied that to prevent abuse of process of Court or otherwise to secure ends of justice the interference would be necessary. 6. The law is well settled on the point that this Court in rare cases interfers with the orders of lower Court in exercise of powers under Section 482, Criminal Procedure Code where Court is satisfied that to prevent abuse of process of Court or otherwise to secure ends of justice the interference would be necessary. In view of the facts and circumstances of the case on hand, I do not find any reason to interfere with the findings of Courts below exercising powers under Section 482, Criminal Procedure Code. 7. In the result, the application is devoid of any merit and substance, the same is, accordingly, dismissed. There shall be no orders as to costs.