Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1083 (RAJ)

Sarjeet Singh v. Jeeto Bai

2011-05-19

KAILASH CHANDRA JOSHI

body2011
JUDGMENT : Kailash Chandra Joshi, J. Heard learned counsel for the parties. 2. By the instant Cri. misc. petition under Section 482 Criminal Procedure Code the petitioner has challenged the order dated 27.01.2009, passed by the Addl.Sessions Judge (Fast Track), Anoopgarh, H.Q. Suratgarh. in Cri. Revision No. 07/2008, whereby he dismissed the revision petition filed by the petitioner and confirmed the order dated 21.03.2007 passed by the learned Addl. Chief Judicial Magistrate, Suratgarh. 3. The brief, facts of the case are the respondent No. 1 on her behalf and on behalf of her minor children, filed an application under Section 125 Criminal Procedure Code wherein it was averred that she was married to Sarjeet Singh about 10-11 years back and out of the wedlock three children were born to them. It was averred in the application that her in-laws were regularly harassing and demanding dowry and finally she was deserted from her in-laws' house. Two of their children are living with her and the elder son is living with her husband, the petitioner. Further it was averred that she was unable to maintain herself and her two minor children and the petitioner has sufficient means and prayed that Rs. 5,000/- may be paid as maintenance per month. Notice was issued to the petitioner on this application and the petitioner denied all the charges and averred that he has not contracted second marriage and respondent No.1 had executed an agreement wherein she admitted that she received Rs. 2,25,000/- as full time maintenance and by concealing this fact she has filed the application under Section 125 Criminal Procedure Code The learned trial court vide its order dated 21.03.2007 allowed the application and awarded Rs. 4,000/- as maintenance for herself and her children. Against that order, the petitioner filed a revision petition before the revisional court, which was dismissed by the revisional court vide its order dated 27.01.2009. Being aggrieved by the aforesaid order the petitioner has preferred this criminal misc. petition. 4. The learned counsel for the petitioner contended that the learned trial court while allowing the maintenance application of the respondents did not take into consideration the fact that by Ex.D.1 affidavit, both the parties took divorce and in lieu of the maintenance, the present petitioner paid Rs. petition. 4. The learned counsel for the petitioner contended that the learned trial court while allowing the maintenance application of the respondents did not take into consideration the fact that by Ex.D.1 affidavit, both the parties took divorce and in lieu of the maintenance, the present petitioner paid Rs. 2,25,000/- as the maintenance allowance one time and further after the divorce as per the Ex.D.1, respondent No.1 along with two children, respondent No.2 and 3, are not entitled to get any maintenance allowance from the petitioner, but the learned trial court as well as the learned revisional court allowed the maintenance to all the three respondents ordering to pay Rs. 2,000/- monthly as maintenance allowance to respondent No.1 and Rs. 1,000/- monthly each to respondent No.2 and 3. The order of the learned trial court, as affirmed by the learned revisional court, cannot be said to be legal and it is per se illegal, perverse, improper and only abuse of process of law, because when once the relationship of husband and wife ended with the execution of affidavit Ex.D.1, then there is no question of entitlement of maintenance allowance by the wife for herself and for the children. 5. The learned counsel for the petitioner vehemently contended that Ex.D.1 is a document by which both the parties mutually agreed for divorce and, therefore, after the mutual divorce, no question of maintenance can arise between the parties. 6. The learned counsel for the respondents vehemently defended the order of the learned trial court as well as that of the learned revisional court and contended that by the execution of Ex.D.1 affidavit, it cannot he said that it was a mutual decree as prescribed under Section 13-B of the Hindu Marriage Act and it cannot have the effect of the decree of divorce and in the absence of dissolution of valid marriage between the parties, the contentions as raised by the learned counsel for the petitioner cannot have any force and he further contended that in Ex.D.1 document, it has been specifically mentioned that the payment of Rs. 2,25,000/- was being made on account of any dowry or gift which were given to the petitioner, therefore, the right of maintenance under Section 125 Criminal Procedure Code cannot be said to be fulfilled by the petitioner. 7. 2,25,000/- was being made on account of any dowry or gift which were given to the petitioner, therefore, the right of maintenance under Section 125 Criminal Procedure Code cannot be said to be fulfilled by the petitioner. 7. The learned counsel for the respondents further contended that the document Ex.D.1, clearly shows that the petitioner was in the habit of behaving with cruelty with respondent No.1 and thus, there is a legal ground with the respondent wife to live separately from her husband. The learned counsel for the respondent further contended that the amount awarded by the learned trial court, and affirmed by the learned revisional court, cannot be said to He excessive in any way and further he contended that the order of the learned trial court or the revisional court cannot be said to he illegal, improper or perverse or the abuse of the process of law, therefore, in all these circumstances, the order of the learned trial court does not require to he set aside at this stage by exercising the powers under Section 482 Criminal Procedure Code The learned counsel for the respondents further contended that the powers under Section 482 Criminal Procedure Code can only be exercised in the cases of gross abuse of the process of law by the court below and in the present case, in no circumstances, it can be said that it is a case of abuse of the process of law and thus, no case for exercising the powers under Section 482 Criminal Procedure Code is made out. 8. I have considered the rival contentions of both the parties and perused the judgment of the learned trial court and the learned revisional court. I have also perused the statements recorded during the enquiry proceedings under Section 125 Criminal Procedure Code. 9. So far as the execution of affidavit Ex.D.1 is concerned, the petitioner has admitted the execution of this document as well as Ex.A.1 document and further the petitioner has admitted the fact of the marriage with respondent No.1 and the factum of two children as respondent No.2 and 3. 9. So far as the execution of affidavit Ex.D.1 is concerned, the petitioner has admitted the execution of this document as well as Ex.A.1 document and further the petitioner has admitted the fact of the marriage with respondent No.1 and the factum of two children as respondent No.2 and 3. The learned trial court as well as the learned revisional court consistently held that Ex.D.1 or Ex.A.1, cannot be said to be a divorce decree by which the legal marriage of both the parties can be said to he ended and when the marriage between the petitioner and respondent No.1 did not end and in the case of subsistence of marriage, the right of the respondents under Section 125 Criminal Procedure Code to get the maintenance from the petitioner, cannot be said to have extinguished. In my considered opinion, the order of the learned trial court can neither be said to be illegal, improper or perverse nor it is can be said to be an abuse of the process of law. Further the order of the learned revisional court does not suffer from any illegality, impropriety or perversity because in any way by way of execution of Ex.D.1, the marriage of both the parties cannot be said to have dissolved because the dissolution of marriage by mutual agreement can only be done as per the provisions contained under Section 13-B of the Hindu Marriage Act, therefore, through the subsistence of marriage, the respondent No.1 along with respondent No.2 and 3 are entitled for the maintenance allowance and so far as the quantum of maintenance is concerned, I am satisfied with it as it cannot be said to be excessive, therefore, the criminal misc. petition does not carry any force and deserves to be dismissed. 10. Accordingly, this criminal misc. petition is dismissed and the orders passed by the learned trial court and the learned revisional court are maintained. Petition dismissed.