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Rajasthan High Court · body

2014 DIGILAW 2114 (RAJ)

Saroj Arora v. Jyoti Babu

2014-12-12

GOPAL KRISHAN VYAS

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Hon'ble VYAS, J.—The instant criminal revision petition has been filed by Smt. Saroj Arora against the order dated 7.4.2012 passed by the learned Addl. Sessions Judge, Sumerpur, District Pali in Cr. Revision Petition No.19/2011 by which the revisional court set aside the order dated 4.4.2011 passed by the learned Judicial Magistrate, First Class, Sumerpur, District Pali in Cr. Misc. Case No.490/2010 by which the interim maintenance of Rs.3,000/-was allowed to the petitioner. 2. The learned counsel for the petitioner submits that the order of revisional court is totally erroneous because in the said revision petition the order of interim maintenance was challenged and the learned revisional court discussed the entire evidence as if the court was deciding the criminal case finally. As per the learned counsel for the petitioner the scope of revisional court’s jurisdiction is very limited but the revisional court assessed the entire facts stated in the application filed under Section 125 Cr.P.C. by the petitioner and reply filed by the non-petitioner against the application for maintenance. While attacking upon the order impugned dated 7.4.2012 it is submitted that the revisional court has committed a gross error while giving finding after assessment of fact that the petitioner-applicant was earlier married with one Ashok Kumar and later on she was living in relation with the respondent Jyoti Babu and while living with him she gave birth to son Chirag. Meaning thereby, while deciding the revision petition against the order of interim maintenance, the revisional court finally gave verdict that petitioner is legally wedded wife of non-petitioner Jyoti Babu. 3. As per the argument of learned counsel for the petitioner the finding given by the revisional court is not sustainable in law because the revisional court was hearing revision petition against the order of interim maintenance not the final judgment of maintenance by the learned trial court, which is to be passed after recording evidence, therefore, the order may be quashed. 4. Per contra, the learned counsel appearing for the respondent submits that order passed by the revisional court does not require any interference because no documentary evidence was produced by the petitioner before the learned trial court to prove the fact that she is legally wedded wife of non-petitioner, therefore, the order of interim maintenance of Rs.3,000/- has been quashed by the revisional court in which there is no error. 5. 5. After hearing the learned counsel for the parties I have perused the application filed by the petitioner before the learned Judicial Magistrate, First Class, Sumerpur under Section 125 Cr.P.C., so also, the application for interim maintenance and reply to the application for interim maintenance. In the reply filed by the respondent to the application for interim maintenance, he has categorically stated in para no.3 that- ^^izkFkhZ;k dk ikyh o HkhyokM+k ds vLirky esa vizkFkhZ us mipkj djok;k rFkk mlds ifjlj okyksa us ;g dgdj fd ljkst lqesjiqj esa vkjke djsaxh vius lkFk lqesjiqj ys x;sA izkFkhZ;k iw.kZ:i ls LoLFk gS rFkk og pyus fQjus esa l{ke gS mls drbZ bZykt dh vko';drk ugha gSA bZykt ds izek.k Lo:i dksbZ nLrkost izkFkhZ;k us is'k ugha fd;s gS vizkFkhZ balkfu;r dh [kkfrj viuh vkfFkZd fLFkr ds vuq:i izkFkhZ;k dh chekjh dk bZykt vxj izkFkhZ;k ds dksbZ chekjh gS rks djkus ds fy, rS;kj gSA vizkFkhZ us mls ?kj ls ugha fudkyk gS og viuh ethZ ls xbZ gSA izkFkhZ;k vxj vizkFkhZ ds lkFk jguk pkgs rks iwoZ dh Hkakfr vizkFkhZ mls j[kus ds fy, rS;kj gSA** 6. In para No.1 of the reply the respondent admitted that the applicant-petitioner was living with him and due to his physical relationship son Chirag was born. The following averments are made in para no.1 of the reply: ^^izkFkhZ;k vizkFkhZ T;ksfr ckcw ds lkFk fyo bu fjys'kulhi esa jgus yxh rFkk T;ksfr ckcw izkFkhZ;k dks Hkj.k iks"k.k o bZykt djkus yxkA bl njfe;ku nksuksa ds 'kjhfjd lEcU/k ls fpjkx dk tUe vo'; gqvkA** 7. In view of the above, the order of the revisional court in which the final finding is given while deciding the question of interim maintenance is totally erroneous and without jurisdiction. The finding with regard to grant of maintenance and not entitlement of maintenance is to be given at the time of final decision of the application.' 8. In view of the above, the order dated 7.4.2012 passed by the Addl. Sessions Judge, Sumerpur, District Pali in Cr. Revision Petition No.19/2011 is hereby quashed and set aside and the order of Judicial Magistrate, First Class, Sumerpur, District Pali is hereby restored. In view of the above, the order dated 7.4.2012 passed by the Addl. Sessions Judge, Sumerpur, District Pali in Cr. Revision Petition No.19/2011 is hereby quashed and set aside and the order of Judicial Magistrate, First Class, Sumerpur, District Pali is hereby restored. However, the respondent is hereby directed to pay the arrears of interim maintenance w.e.f. the order of interim maintenance dated 4.4.2011 within two months and shall pay the regular maintenance month by month till disposal of application u/Sec. 125 Cr.P.C. The Cr. Revision petition is allowed in the above terms.