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2002 DIGILAW 548 (MP)

Anand Asrani v. Roshni alias Tulsidevi Asrani

2002-05-16

N.S.AZAD

body2002
Judgment ( 1. ) THE petitioner seeks relief of recalling of order dated 18-1-2002 passed by this Court in M. Cr. C. No. 596/2001 in exercise of inherent powers. ( 2. ) THIS petitioner challenged the order dated 1-12-2000 passed by Sessions Judge, Satna, in Criminal Revision No. 70/2000, in his M. Cr. C. No. 596 of 2001 filed under Section 482, Cr. PC (hereinafter referred to as the "code") on these facts that he was married to respondent in 1986, who, on account of dispute between the two started living separately with her parents at Satna. The respondent filed application against this petitioner claiming maintenance under Section 125 of the Code, which was registered as MJC No. 3/89. The learned CJM granted maintenance at the rate of Rs. 300/- per month to respondent and at the same rate to her son by order dated 31 -8-1994. Thereafter, respondent filed application under Section 127 of the Code seeking enhancement in maintenance. The petitioner denied all the material allegations made by the respondent in her above application, yet in the absence of any change in circumstances, the learned JMFC accepted the application and enhanced the rate of maintenance to Rs. 1500/- per month whereas he could not have legally awarded the maintenance exceeding Rs. 500/- per month. The petitioners challenged the aforesaid order in Criminal Revision No. 70/2000 which stood partly allowed by Sessions Judge, Satna, on 1-12-2000 who reduced the amount of maintenance to Rs. 900/- per month. The petitioner seeks relief of rejection of order dated 13-3-2000 passed by learned JMFC on respondents application moved under Section 127 of the Code, in exercise of inherent powers. ( 3. ) THE order dated 1-12-2000 passed by Sessions Judge, Satna, in petitioners Criminal Revision No. 70/2000 was challenged by respondent also in Criminal Revision No. 67/2001 which stood disposed of by this Court in dismissal on 28-6-2001. In Criminal Revision No. 67/2001, Shri S. K. Dwivedi, Advocate, appeared for this petitioner who was impleaded as non-applicant. The relevant portion of the order dated 28-6-2001 passed by this Court in Criminal Revision No. 67/2001, runs as under :- "learned Sessions Judge has observed that no reason was assigned by the learned Magistrate for enhancing the amount of maintenance 5 times the amount originally awarded and it was not shown as to on what basis the said figure was aggrieved at. Keeping in view the rise in price, learned Sessions Judge deemed it fit and proper to enhance maintenance by 3 times and, therefore, reduced the amount from Rs. 1500/- to Rs. 900/ -. Learned Counsel submits that the petitioner is required to spend substantial amount on payment of rent for the house. No proof has been given with regard to the income of the husband (non-applicant ). The learned Sessions Judge has already taken note of all facts and circumstances as also the general rise in prices since 1994 when the petitioner had been granted maintenance allowance. No ground is made out calling for interference in the order passed by the learned Sessions Judge. " ( 4. ) ON considering the aforesaid order dated 28-6-2001, while disposing of the petitioners application moved under Section 482 of the Code which is registered as M. Cr. C. No. 596/2001, this Court found it not maintainable, of course, in his absence, on the ground that the order dated 1-12-2000 passed by Sessions Judge, Satna, in petitioners Criminal Revision No. 70/2000, was in challenge before this Court in respondents Criminal Revision No. 67/2001. ( 5. ) IT is argued on behalf of the petitioner that disposal of respondents Criminal Revision No. 67/2001 by this Court does not debar this petitioner from challenging the legality of order dated 1-12-2000 passed by the Sessions Judge, Satna, in petitioners Criminal Revision No. 70/2000, under inherent powers, wherein the order dated 13-3-2000 passed by JMFC on respondents application moved under Section 227 of the Code, was in challenge, else so far as this petitioner is concerned, the order passed by Sessions Judge, Satna, in Criminal Revision No. 70/2000 shall become final and this grievance of the petitioner would go adjudicated that the JMFC was not competent to enhance the rate of maintenance, in absence of proof of change in circumstances. ( 6. ) IN support of this argument that amount of maintenance cannot be enhanced in absence of proof of change in the circumstances, Shri Dwivedi has drawn the Courts attention to Chandrakali Bai v. Chhedi Singh, reported in 1993 (1) MPWN 192 . He has further drawn Courts attention to Preetpat Singh v. Smt. Ishwari Devi and Ors. , reported in 1991 Cr. LJ 3015 and Balak Ram v. State, reported in 1973 Cr. He has further drawn Courts attention to Preetpat Singh v. Smt. Ishwari Devi and Ors. , reported in 1991 Cr. LJ 3015 and Balak Ram v. State, reported in 1973 Cr. LN 750, wherein it has been dictated that the amount of maintenance cannot be enhanced on the averments in the petition only and in disposing of the aforesaid application, an elaborate enquiry has to be made. ( 7. ) BUT as dictated by this Court on 28-6-2001, in respondents criminal revision, the learned Sessions Judge did consider the cases of both the parties while reducing the amount of maintenance from Rs. 1500/- to Rs. 900/- in petitioners Criminal Revision No. 70/2000, wherein, this petitioners challenge to the legality and propriety of the order of enhancement dated 13-3-2000 passed by JMFC in Misc. Criminal Case No. 161/99, was under consideration, therefore, I am still of the view that since the legality of order of enhancement dated 13-3-2000 passed by JMFC under Section 127 of the Code in Misc. Criminal Case No. 161/99, which was in challenge in petitioners Criminal Revision No. 70/2000, is already once considered in petitioners presence, in respondents Criminal Revision No. 67/2001, along with legality and propriety of order dated 1-12-2000 passed by Sessions Judge, Satna, in Criminal Revision No. 70/2000, now the remedy in exercise of inherent powers, is not available to this petitioner for challenging the aforesaid order dated 13-3-2000 passed by JMFC, and order dated 1-12-2000 passed by Sessions Judge, in Criminal Revision No. 70/2000. ( 8. ) THUS, this petition stands disposed of as not maintainable because no patent glaring or palpable illegality is found to have committed by this Court in rejecting the petitioners earlier application moved under Section 482 of the Code, registered as M. Cr. C. No. 596/2001, by order dated 18-1-2002, as not maintainable.