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2006 DIGILAW 403 (ORI)

Jasolal Agrawalla alias Jasolal Jain v. Pushpabati Agrawalla

2006-05-18

A.S.NAIDU

body2006
JUDGMENT A. S. NAIDU, J. : The opposite party asserting herself to be the wife of the petitioner filed a petition before the J.M.F.C., Kantabanji claiming monthly maintenance from the petitioner under Section 125 Cr.P.C. The said petition was registered as Cri.Misc.Case No.41 of 1980. According to the opposite party-wife the marriage between her and the petitioner-husband was solem¬nized on 17th May, 1970 and that the petitioner without any justifiable reason ill-treated and deserted her thereby causing immense hardship to her. She had no means to sustain herself and was constrained to knock at the portals of the Court. The JMFC after hearing the case by a reasoned order passed on 4th January, 1992 allowed the Cri. Misc. Case granting maintenance of Rs.300.00 per month to the opposite party-wife with effect from 1st of September, 1981 and directing the petitioner-husband to pay the same. Being aggrieved by the said order of the JMFC, the petitioner-husband filed Criminal Revision bearing number 6/9 of 1992 before the Addl.Sessions Judge, Titilagarh. The revisional Court confirmed the order of the JMFC and dismissed the Revision. Invoking inherent jurisdiction of this Court under Section 482 CrPC the petitioner-husband challenged the orders of the Courts below in CRMC No.2291 of 1992. According to him the dispute inter se between the parties was the subject-matter of Title Suit No.14 of 1980 in which a decree for dissolution of marriage was passed on the ground that the opposite party-wife had deserted him. It was further averred by him that T.S. No.33 of 1980 filed by the opposite party-wife claiming maintenance from him was dismissed for default. Similarly, T.S. No.15 of 1984 filed by the opposite party-wife for setting aside the ex parte decree of dissolution of marriage passed in T.S. No.14 of 1980 was also dismissed for default. According to the petitioner-husband notwithstanding the aforesaid decrees of civil court, the JMFC illegally granted maintenance in favour of the opposite party-wife and the same had been mechanically confirmed by the revisional Court and that it was a fit case where the orders of the Courts below ought to be quashed. This Court disposed of the said CRMC No.2291 of 1992 by order dated 30th September, 1993 quashing the orders of both the Courts below and remitting the matter back to the JMFC for fresh disposal thereof in accordance with law. This Court disposed of the said CRMC No.2291 of 1992 by order dated 30th September, 1993 quashing the orders of both the Courts below and remitting the matter back to the JMFC for fresh disposal thereof in accordance with law. Thereafter the case was once again heard by the JMFC and by order dated 26th March, 1996 the JMFC holding that he opposite party-wife was entitled to maintenance, allowed the petitioner filed by her and granted maintenance to her at the rate of Rs.300.00 per month from the date of her filing the petition, i.e. 21.8.1980. The husband-petition again assailed the said order dated 26th March, 1996 of the JMFC before this Court in Crl.Rev. No.239 of 1996. This Court by judgment dated 12th Au¬gust, 1998 disposed of the said Crl.Rev. No.239 of 1996 holding that the petition filed by the opposite party-wife under Section 125 CrPC was maintainable and she was entitled to monthly mainte¬nance. But then in the given facts and circumstances of the case this Court held that the opposite party-wife was not entitled to maintenance till the date on which the decree for dissolution of marriage was passed, i.e. 21st August, 1981/29th August, 1991. Consequently this Court modified the order of maintenance passed by the JMFC as to the date from which the opposite party-wife was entitled to monthly maintenance as stated above. The aforesaid judgment of this Court has been reported in (1998)15 OCR 222 (Jasholal v. Smt. Pushpabati). After disposal of Crl.Rev. No.239 of 1996 by this Court, the opposite party-wife filed two petitions before the JMFC under Section 125(3) on 1st March, 1999 and 23rd March, 2000 respec¬tively for realization of maintenance granted in her favour from the petitioner-husband. 3. The matter did not end there. The petitioner-husband filed SLP before the Supreme Court which was registered as SLP (CRIMINAL) No.502 of 1999 and was disposed of by the Supreme Court on 17th September, 1999 with the following observation :- “The ground urged by the petitioner is that he obtained a decree for divorce on the ground that the respondent had deserted him. He contends that in view of the said decree he cannot be mulated with liability to pay maintenance allowance to the re¬spondent. If the said statement is correct, petitioner has a remedy under Section 127(2) of the Code of Criminal Procedure. He contends that in view of the said decree he cannot be mulated with liability to pay maintenance allowance to the re¬spondent. If the said statement is correct, petitioner has a remedy under Section 127(2) of the Code of Criminal Procedure. We dis¬pose of this SLP without prejudice to the rights of the petition¬er to pursue the aforesaid remedy.” 4. The petitioner-husband strongly resisted the petitions filed by the opposite party-wife under Section 125(3) mainly on the ground that the said petitions had been filed much beyond the period of limitation prescribed therefore. According to him the order of maintenance having been passed by the JMFC on 26th March, 1996 and the same having not been stayed by any superior Court, the petitions filed under Section 125(3) on 1st March, 1999 and 23rd March, 2000 were not maintainable being grossly barred by limitation. The JMFC after hearing the parties by order dated 25.4.2000 held that the petitions were not barred by limi¬tation as the matter was sub judice and had not attained finality and that the petitioner-husband was liable to pay the arrear maintenance to the opposite party-wife as ordered by this Court, i.e. Rs.63,000.00 for the period from 1.9.1981 to 1.3.1991, and Rs.3,600.00 for the period from 24.3.1999 to 23.3.2000, thus totalling to Rs.66,600.00. Challenging the said order dated 25.4.2000 of the JMFC, the petitioner-husband again filed Crl.Revision No.3 of 2000 before the Addl.Sessions Judge, Titila¬garh who by a well-discussed judgment dated 29th March, 2001 concurred with the order of the JMFC dated 25.4.2000 and dis¬missed the Revision. 5. Circumventing the bar under Section 397(3) CrPC the petitioner has approached this Court invoking inherent jurisdic¬tion under Section 482 CrPC. In consonance with law, a party preferring a Criminal Revision before the sessions Court cannot file a second revision before this Court. Law is also well set¬tled that unless there is grave injustice or palpable illegality or infirmity causing immense prejudice to a party or there is miscarriage of justice this Court should not interfere with the order of the revisional Court exercising its inherent jurisdic¬tion. 6. Now let me consider the submissions made by learned counsel on the aforesaid background and position of law. Mr. 6. Now let me consider the submissions made by learned counsel on the aforesaid background and position of law. Mr. Dhal, learned counsel for the petitioner, relying upon two decisions of this Court in the case of Hagiri Dei v. Budhi¬ram, reported in 1982 CriLJ 491, and Bimala Dei v. Karan Mulia, reported in 1986 CriLJ 521, urged that the claim of the opposite party-wife had been grossly barred by limitation since the peti¬tions had been filed beyond one year of passing of the order by the JMFC. According to him, as no order had been passed by any superior Court staying operation thereof, there was no impediment for the opposite party-wife to file petition for realization of maintenance amount from the petitioner-husband within one year of the said order of the J.M.F.C., and that mere pendency of the proceeding in higher forum was no ground to file the petitions beyond the period prescribed to do so. 7. To appreciate the submissions made by Mr. Dhal, it would be just and prudent to refer to Sub-section (3) of Section 125 CrPC which reads as follows :- “If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made : Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due : xxx xxx xxx xxx” 8. In the case at hand, the order granting maintenance by the J.M.F.C., and the order of the Addl.Sessions Judge in Revision were successfully assailed by the petitioner and this Court in an earlier Crl.Revision had set aside both the said orders and had remitted the mater back to the J.M.F.C., for fresh disposal. In the case at hand, the order granting maintenance by the J.M.F.C., and the order of the Addl.Sessions Judge in Revision were successfully assailed by the petitioner and this Court in an earlier Crl.Revision had set aside both the said orders and had remitted the mater back to the J.M.F.C., for fresh disposal. The J.M.F.C., on consideration of the materials again passed a fresh order granting maintenance in favour of the oppo¬site party-wife and the said order was assailed by the petition¬er-husband before this Court in Crl.Rev. No.239 of 1996 and this Court by order dated 12th August, 1998 modified the date of payment of maintenance. Thus the order granting maintenance of the opposite party-wife became final only after disposal of the aforesaid Crl.Rev. No.239 of 1996 by this Court on 12th August, 1998. 9. The main petition under Section 125 CrPC (Cri.Misc.Case No.41 of 1980) had been filed in the year 1980. The said case as narrated above had a chequered career and came to a logical end only in the year 1998 after disposal of Crl.Rev. No.239 of 1996 by this Court. The SLP filed before the Supreme Court was dis¬posed of in the year 1990. In the aforesaid peculiar facts and circumstances, this Court feels that the bar under Section 125(3) CrPC shall not apply to the present case. It must always be borne in mind that Section 125 CrPC is a measure of social legislation and it has to be construed liberally for the welfare and benefit of wife, as has been held by the Supreme Court in the case of Shantha @ Usha Devi and another v. B. G. Shiva Nanjappa, reported in 2005 AIR SCW 2613. It is unreasonable to insist on filing of successive applications when the liability to pay the maintenance as per the order passed under Section 125(1) CrPC though a con¬tinuing liability has not attained finality. 10. For the aforesaid reasons I am not inclined to inter¬fere with the impugned order and dismiss this CRMC with direction to the learned JMFC to pass appropriate orders under Section 125(3) CrPC in case the arrear maintenance amount is not paid within three months hence. CRMC dismissed.