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2004 DIGILAW 227 (HP)

PURAN CHAND v. BAGAN DEVI

2004-09-17

M.R.VERMA

body2004
JUDGEMENT M.R. Verma, Judge. This petition is directed against the order dated 6.5.2003 passed by the teamed Sessions Judge, Kangra at Dharamshala whereby the order dated 5.12.2001 passed by the learned Additional Chief Judicial Magistrate, Palampur dismissing the application under Section 125 of the Code of Criminal Procedure (hereafter referred to as the Code) filed by the respondent claiming maintenance has been set aside and the respondent has been awarded monthly maintenance of Rs-400/. 2. Brief facts leading to the filing of the present petition are that the respondent filed an applicant for grant of maintenance to her under Section 25 of the Code against the petitioner. Her case as made out in the applicant is that she was married to the petitioner in February, 1943 and a daughter was bom out of the wedlock in the year 1950, however, thereafter the respondent was removed out of the matrimonial house. Parties reconciled at a later stage. However, 28 years before the respondent was again driven out of her matrimonial house. Presently she is living with her daughter and has no source of income and is unable to maintain herself whereas the petitioner has monthly income of more than Rs. 12,000/- from his sources including 30 kanals of land which he owns It is further averred that the petitioner had wilfully neglected the refused to maintain the respondent Hence, the application claiming maintenance in the sum of Rs 500/-per month. 3. The petitioner contested the applicant aid his reply raised the preliminary objections that the applicant was not maintainable and the respondent had no locus standi to file the application. On merits, all averments in the applicant had deputed and denied including the claim of the respondent that the marriage was solemnized between the parties and any issue was bom out of the marriage. It has been claimed that the respondent is not the legally wedded wife of the petitioner, ft has also been averred that the petitioner is an aged person of 75 years and unable to work and is entirely dependant on his chicken bom out of his living wife Sandi Devi for his own maintenance. The claim of the respondent has been, this, denied as whole. 4. The claim of the respondent has been, this, denied as whole. 4. on consideration of the evidence led by the parties and on the basis of the material on record, the learned trial Magistrate held that it was not possible to hold mat the respondent is legally wedded wife of the petitioner, that she had withdrawn her similar earlier petition fled in 1997 without reserving liberty to file fresh petition and that the respondent was not the verge of starvation but was being maintained by her daughter and accordingly dismissed toe application. 5. Feeling aggrieved, the respondent preferred a Revision Petition before the learned Session Judge Kangra at Dharamshala, who by the impugned judgment, accepted the said petition, set aside the order passed by the learned trial Magistrate dismissing the application of the respondent and allowed her application awarding maintenance of Rs.400/- per month. Hence this petition by the petitioner. 6. I have heard the teamed counsel for the parties and have also gone through the records. 7. It is case of the respondent herself vide Para-10 of the application, copy thereof is ExtRW-4/A for maintenance in the Court of the trial Magistrate on 26.6.1997 which was dismissed as withdrawn on 11.3.1999. It has been specifically averred vide Para-8 of ExtRW-4/A that in June, 1951 the respondent filed a maintenance petition in a Court at Dharamshala and was awarded maintenance Rs. 50/- per month. The petitioner, however, finding it hard to pay the maintenance and the escape the liability allured the respondent and took her to his house at Khaira and destroyed the order of maintenance passed by the Court at Dharamshala and also destroyed copies of the petition etc. The respondent admits filing of the application ExtRW-4/A in her cross-examination Thus, what emerges from the pleadings and admission of the respondent is that a Court at Dharamshala had already awarded maintenance to the respondent Rs.50/- per month way back in the year 1951. case the copy of the order of maintenance or the copies of the petition retrained by the respondent were destroyed by the petitioner that will not make any deference because the order awarding maintenance passed by a Court of competent jurisdiction with remain effective unless revoked/cancelled by the Court passing the order in accordance with the provisions contained in the Statute. 8 In Bhupinder Singh vs. Daljit Kaur (AJ.R. 1979 SC442, the Apex Court held as follows:- "7. We are concerned with a Code which a complete on the topic and any defence against an order passed under S. 125 Cr.P.C. must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under S.125 (4), (4) or S.127 of the Code it is open to him to initiate appropriate proceedings. But unmodified or cancelled by a higher Court or is carried or vacated in terms of Section 125 (4) or (5) or S.127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. In this view, we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good and that the view taken by Sir Shadi Lal Chief Justice is sound." 9. It is not the case of the respondent that an order granting maintenance to her was ever revoked or canceled by the Court Even if the respondent joined company of the petitioner after the passing of the said order that will not ipso facto revoke or cancel the order granting maintenance to her. Such order can be revoked or cancelled by the Court m accordance with the provisions of sub sections (4) and (5) of Sections 488 of the Code of Criminal; Procedure 1973 or those of sub Sections (4) and (5) of Section 125 or Section 127 of the Code of Criminal Procedure 1973 as the case may be. Such order can be revoked or cancelled by the Court m accordance with the provisions of sub sections (4) and (5) of Sections 488 of the Code of Criminal; Procedure 1973 or those of sub Sections (4) and (5) of Section 125 or Section 127 of the Code of Criminal Procedure 1973 as the case may be. Therefore, the application field by the respondent under Section 125 of the Code for grant of maintenance to her in view of the earlier order still in existence is not maintainable The lawful course open to the respondent was to apply for enforcement of the maintenance order earlier passed in her favour in 1950 and if it was felt that the maintenance thereby awarded was with the passage of time rendered insufficient she could have filed an application for enhancement of the amount of maintenance allowance earlier awarded to her 10. In view of the above, the application moved by the respondent for grant of maintenance to her is not maintainable and deserved to be dismissed on this ground alone. The impugned order having been passed on such application being illegal is liable to be set aside. 11. As a result this petition is allowed and the impugned order is set aside and the application of the respondent for maintenance being not maintainable is dismissed.