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2006 DIGILAW 757 (RAJ)

Hari Ram v. Chuka Devi

2006-03-06

GOPAL KRISHAN VYAS

body2006
Judgment G.K. Vyas, J.-By way of filing present misc. petition under Section 482, CrPC, the petitioner has challenged the order dated 11.03.2003 passed by Additional Chief Judicial Magistrate, Deedwana in Criminal Misc. Case No. 185/2001 as well as the order dated 24.03.2004 passed by Additional Sessions Judge, Deedwana in Criminal Revision No. 08/2003 whereby the revisional Court while dismissing the revision petition preferred by the petitioner, upheld the order passed by the Additional Chief Judicial Magistrate, Deedwana dated 11.03.2003. 2. Brief facts of the case are that the non-petitioner Smt. Chuka Devi moved an application under Section 125, CrPC, before the Additional Chief Judicial Magistrate, Deedwana claiming maintenance of Rs. 2,500/-per month. After trial, the trial Court came to the conclusion that the petitioner is earning Rs. 1,200/-per month and thus, awarded maintenance allowance to the tune of Rs. 750/-per month in favour of the complainant-non-petitioner vide order dated 11.03.2003. Against the order passed by the trial Court, the petitioner preferred a revision petition before the revisional Court whereby by the Additional Sessions Judge, Deedwana while dismissing the revision petition upheld the order passed by trial Court for maintenance of Rs. 750/-per month in favour of the non-petitioner Smt. Chuka Devi. 3. The present petition has been filed on the ground that the learned trial Court has committed grave error of law in allowing the maintenance of Rs. 750/-per month in favour of the non-petitioner despite the fact that the learned trial Court assessed the income of the petitioner as Rs. 1,200/-per month. Therefore, it is prayed that both the Judgment s passed by trial Court as well as revisional Court deserve to be quashed. 4. It is contended by the learned Counsel for the petitioner that the learned trial Court has not considered the statement of the petitioner as NAW-1 wherein he has categorically stated that he is ready and willing to keep the non-petitioner Smt. Chuka Devi with him as his wife if she so wishes. It is also submitted that the respondent herself is earning rupees 40 to 50 per day, which facts has not been considered by the learned Magistrate. It is also submitted that the respondent herself is earning rupees 40 to 50 per day, which facts has not been considered by the learned Magistrate. Learned Counsel for the petitioner has also attacked upon the finding with regard to the conclusion of the income of the petitioner while stating that there is no regular wages available in the un-irrigated area so also it is urged that the maintenance awarded in favour of the non-petitioner is not at all justified. Further, he has assailed the order of the revisional Court and submitted that the learned revisional Court has committed illegality in not considering the above aspect of the matter. The order passed by the learned revisional Court also suffers from illegality; therefore, the same deserves to be quashed. 5. The main emphasis is given by the petitioner that he is ready and willing to keep non-petitioner Chuka Devi with him as his wife but she is adamant to remain at her parental house for which the petitioner cannot be punished. Therefore, the maintenance as awarded by the trial Court and upheld by the revisional Court may be set aside. 6. During the course of arguments, it was also brought to the notice of the Court by the learned Counsel for the petitioner that non-petitioner is working in the Aanganwadi Centre, Gram Panchayat Ugarpura, Panchayat Samiti Kuchaman City, Nagaur and urged that she herself is earning, therefore, the amount so awarded by the learned trial Court is erroneous and deserves to be quashed. 7. In support of his arguments, learned Counsel for the petitioner has invited the attention of this Court towards the Judgment rendered by this Court in case of Bhanwar Lal vs. Smt. Prem, reported in 1989 CrLR 378 (Raj), wherein the Honble Single Judge of this Court while partly allowing the petition reduced the amount of maintenance from Rs. 250/-to Rs. 200/-. In that case, there was finding of the petitioner with regard to earning of Rs. 560/-per month. He has placed reliance upon yet another Judgment rendered in case of Krishnan & Anr. 250/-to Rs. 200/-. In that case, there was finding of the petitioner with regard to earning of Rs. 560/-per month. He has placed reliance upon yet another Judgment rendered in case of Krishnan & Anr. vs. Krishnaveni & Anr., reported in 1997 (4) SCC 241 in which it has been held by Honble Supreme Court that inherent power of the High Court is still available under Section 482, CrPC, against the order of the revisional Court but such inherent power must be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The power under Section 397 (3), CrPC with regard to filing second revision does not restrict the inherent power left with the High Court under Section 482, CrPC. 8. Per contra, learned Counsel for the non-petitioner has contended that while exercising the inherent jurisdiction under Section 482, CrPC, the question of fact cannot be interfered with and further, it is submitted that the application for maintenance was filed by the non-petitioner in the year 2001 and she is living separately since 18.07.2000 and the petitioner is having 30 bighas of agricultural land so also he is having immovable property and also working as driver and earning Rs. 5,000/- per month but the learned trial Court after considering the entire evidence have come to the conclusion that the petitioner is earning Rs. 1,200/- per month so also he is having 3 bighas agricultural land, which is his share in the total agricultural land belonging to the family of the petitioner, therefore, the finding of the learned trial Court does not require any interference by this Court. It is also contended that since 2001, the Non-petitioner No. 2 is pursuing her remedy before the Court and by way of filing revision and present petition under Section 482, CrPC challenging the order passed by the learned trial Court for payment of maintenance, the petitioner is not ready to pay the amount of maintenance which is Rs. 750/-per month which is so awarded by the learned trial Court. 9. I have perused both the Judgment s passed by the learned trial Court as well as revisional Court and record of the case. 10. 750/-per month which is so awarded by the learned trial Court. 9. I have perused both the Judgment s passed by the learned trial Court as well as revisional Court and record of the case. 10. It is obvious from the finding that the learned trial Court after considering all the aspect of the matter as also the entire evidence adduced before it by both the parties come to the conclusion that the non-petitioner is entitled for maintenance of Rs. 750/-per month. Simultaneously, it is obvious from the Judgment of the trial Court that as per the conclusion of the trial Court the petitioner is earning Rs. 1,200/-per month and he is having 3 bighas agricultural land. While exercising revisional jurisdiction, the revisional Court has also elaborately discussed all the points raised by the petitioner and upheld the Judgment rendered by the learned trial Court. 11. In my opinion, the Judgment rendered by the learned trial Court is well worded and has been given after considering the entire evidence in right perspective. Likewise, the revisional Court has also exercised its jurisdiction with care and caution and also adjudicated the matter upon the basic principles of revisional jurisdiction. It is also significant to mention here that under Section 397, CrPC, the revisional Court can look into the legality and propriety of any finding of inferior Court and a bare perusal of the order passed by revisional Court goes to show that there is no error apparent on the face of it. More so, while upholding the Judgment given by the learned trial Court, the revisional Court has rightly held that no interference in the order passed by the learned trial Court is required. It is true that under Section 482, CrPC there is inherent power left with the High Court but while exercising such power for the purpose of securing the ends of justice and to prevent the abuse of process of Court, the High Court can interfere. Here in the case at hand, it is quite clear from the evidence recorded by the trial Court that the petitioner is earning Rs. Here in the case at hand, it is quite clear from the evidence recorded by the trial Court that the petitioner is earning Rs. 1,200/-per month and it is obligatory duty of a husband to maintain his wife and admittedly the petitioner is having agricultural land, may be three bighas, but it is admitted position of the case that the petitioner is having a piece of agricultural land, therefore, there is no error in the finding given by the Court below with regard to the earning of the petitioner as Rs. 1,200/- per month. 12. With regard to the contention of the petitioner that at present the non-petitioner Smt. Chuka Devi is working as Aanganwari worker in the village area, such evidence was not before the learned trial Court and if the petitioner is having any grievance with regard to the earning of the non-petitioner, then it is always upon for him to file proper application before the trial Court but this fact cannot be considered by this Court in a petition under Section 482, CrPC, in which the petitioner has challenged the validity of the Judgment of the learned trial Court as well as revisional Court. 13. However, when the earning of the petitioner has been assessed by the trial Court as Rs. 1,200/-per month, then, awarding the maintenance of Rs. 750/-per month in favour of the non-petitioner which is more than 50% of earning of the petitioner, is erroneous. Thus, in the interest of justice, the amount of monthly maintenance as has been awarded by the trial Court in favour of non-petitioner as Rs. 750/-per month is hereby reduced to Rs. 600/-per month and the same shall be payable by the petitioner from the date of passing of the order dated 11.03.2003 by the trial Court. 14. With the aforesaid modification, the misc. petition stands partly allowed.