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Madhya Pradesh High Court · body

2013 DIGILAW 1441 (MP)

Ashok Kumar v. Sangeeta Bai

2013-11-20

N.K.Gupta

body2013
ORDER 1. The applicant has challenged the order dated 13.6.2011 passed by the learned JMFC, Balaghat in Misc. Criminal Case No. 75/2010, whereby the application under section 127 (1) of the CrPC filed by the applicant was dismissed. He has also challenged the order dated 17.7.2012 passed by the learned Additional Sessions Judge to First Additional Sessions Judge, Balaghat in criminal revision No.129/2011, whereby the revision filed by the applicant was dismissed. 2. The facts of the case, in short, are that, the respondent was provided with a maintenance of Rs.3,000/- per month vide order dated 14.9.2007 passed by the learned Additional Chief Judicial Magistrate, Balaghat in criminal revision No.139/2007. The learned Sessions Judge, Balaghat vide order dated 20.11.2007 reduced that amount to a sum of Rs.1,500/-. The applicant has moved an application under section 127 (1) of the CrPC before the JMFC, Balaghat on various grounds. It was dismissed by the learned JMFC, Balaghat on 13.6.2011 and revision was also dismissed. 3. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it would be apparent that the applicant has moved an application under section 127 (1) of the CrPC mainly on three grounds. Firstly, the respondent is earning a sum of Rs. 2,500/- as an Aaganwadi worker. Secondly, the applicant is studying in a Polytechnic college and therefore, he does not have any earning and thirdly, that a decree of divorce was passed between the parties. 4. So far as the first ground is concerned, it is found by both the Courts below that the respondent was granted a maintenance of Rs.1,500/- in the year 2009, whereas dearness is increased and her income of Rs.2,500/- is included in her expenditure then, still she requires a maintenance of Rs.1,500/- and therefore, there was no effect of income received by the respondent. There is no basis to disturb the finding of both the Courts below on this count. 5. Similarly, it was decided that the original order was passed on the basis that the applicant is competent to earn and at that time he was earning a sum of Rs.9,000/- per month. The applicant has hidden his source of livelihood. If he is studying in a polytechnic college then, it is apparent that he is bearing fees etc. 5. Similarly, it was decided that the original order was passed on the basis that the applicant is competent to earn and at that time he was earning a sum of Rs.9,000/- per month. The applicant has hidden his source of livelihood. If he is studying in a polytechnic college then, it is apparent that he is bearing fees etc. of that college of technical education and he could prosecute his studies being a part-time student and therefore, by his studies in that college, he could not show that he was totally unemployed or he is not capable to earn. Under such circumstances, if he is studying in some polytechnic college then, it gives no effect to the maintenance granted to the respondent. Also, it would be clear that the provisions under section 125 of the CrPC deals for the maintenance to the divorced wife even. If the applicant would have proved that he paid a lumpsum maintenance due to divorce took place between the parties and it was agreed that no further maintenance will be given under section 125 of the CrPC then, a decree of divorce could have effect in the present case but, in decree of divorce, there is nothing about the alimony given to the divorced wife. 6. On the basis of the aforesaid discussion, it would be apparent that the Courts below have rightly dismissed the application under section 127 of the CrPC filed by the applicant. There is no basis by which any interference can be done in the orders passed by both the Courts below. The present petition under section 482 of the CrPC is nothing but a second revision in the garb of petition under section 482 of the CrPC, which cannot be accepted. Consequently, it is hereby dismissed at motion stage. 7. A copy of the order be sent to both the Courts below along with their records for information. Anurag Shivhare for applicants. .............