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2015 DIGILAW 10 (MP)

Shivnarayan v. Gangabai

2015-01-05

JARAT KUMAR JAIN

body2015
JUDGMENT : Jarat Kumar Jain, J. 1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973, against the order dated 30.05.2012 passed by 2nd ASJ, Shajapur in Criminal Revision No. 257/11 by which affirmed the order dated 14.10.2011 passed by ACJM, Shajapur in MJC No. 59/09. 2. Brief facts of this case are that the respondent wife has filed an application under Section 125 of Code of Criminal Procedure against the Petitioner-husband claiming the maintenance on the ground that their marriage was solemnized way back in the year 1951 as per the Hindu rites. She lived with the Petitioner for about five years. During that period she was subjected to cruelty and the Petitioner-husband used to beat her and he expressed that he did not like her. Ultimately the respondent wife was turned out from her matrimonial home and she started living with her father. Thereafter for almost forty years she lived separately. Now she became old and unable to maintain herself whereas the Petitioner has agriculture income of Rs. 5.00 lakh per year. The Petitioner has contracted the second marriage and in such circumstances, the Petitioner-husband be directed to pay her the maintenance @ Rs. 3000/- per month. 3. The Petitioner husband resisted the application mainly on the ground that their marriage was void as at the time of their marriage they were minor. They never lived as husband and wife. The Petitioner husband is now aged about 72 years and he has no income. He himself is dependent upon his sons whereas the respondent wife has inherited the agricultural land from her father but she intentionally relinquished her rights in favour of her brother's son with a view to claim maintenance. In such circumstances, the respondent is not entitled for any maintenance from the Petitioner-husband. 4. Learned ACJM after due inquiry allowed the application and directed the Petitioner-husband to pay maintenance @ Rs. 3000/- per month. Against this order the Petitioner has filed the revision. By the impugned order learned 2nd ASJ Shajapur dismissed the revision on 30.05.2012 and affirmed the order of ACJM. Being aggrieved with this order the Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure. 5. Learned counsel for the Petitioner-husband submits that the findings recorded by the Courts below are perverse. By the impugned order learned 2nd ASJ Shajapur dismissed the revision on 30.05.2012 and affirmed the order of ACJM. Being aggrieved with this order the Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure. 5. Learned counsel for the Petitioner-husband submits that the findings recorded by the Courts below are perverse. He further submitted that it is apparent from the record that their marriage was solemnized when they were minor, therefore their marriage is void. The respondent has failed to prove that she lived with Petitioner as husband and wife for 5 years and the Petitioner-husband turned out the respondent and he neglected to maintain the respondent. The courts below have not considered this fact. The Petitioner has filed this application after a lapse of more than 40 years and she is unable to give explanation for such a long delay. Learned Courts below have not taken into consideration this fact that the Petitioner is a old person of 75 years and he himself is dependent upon his sons therefore he is unable to pay maintenance awarded by the Courts below. 6. Learned Counsel for the Petitioner further submits that the respondent wife did not returned to the matrimonial home for a long period and in such circumstances the Petitioner husband performed second marriage. Thus the respondent wife having deserted the Petitioner-husband is not entitled to claim maintenance particularly when the husband has reached 75 years of age and is having no means of income. For this purpose he relied upon the judgment of this Court Urmila Tiwari Vs. Chandrika Prasad Tiwari reported in 2009 (2) MPWN-67. 7. Learned Counsel for the Petitioner submits that the petition for maintenance filed by the wife after about 45 years and she has failed to explain the inordinate delay and therefore she is not entitled for maintenance. He relied upon the judgment of Hon'ble Apex Court in the case of D. Velusamy Vs. D. Patchaiammal : AIR 2011 SC 479 . Thus the orders passed by the Courts below be set aside. 8. Learned Counsel for the respondent wife submits that both the courts below have recorded concurrent findings that the respondent is a legally married wife of the Petitioner and Petitioner neglected to maintain the respondent wife and the wife does not possess sufficient means to maintain herself whereas the Petitioner-husband has sufficient means to pay maintenance. 8. Learned Counsel for the respondent wife submits that both the courts below have recorded concurrent findings that the respondent is a legally married wife of the Petitioner and Petitioner neglected to maintain the respondent wife and the wife does not possess sufficient means to maintain herself whereas the Petitioner-husband has sufficient means to pay maintenance. Such findings cannot be gone into a petition under section 482 Cr.P.C. An order granting maintenance based on proper appreciation of evidence therefore it cannot be interfered in exercise of inherent powers. 9. After hearing learned counsel for the parties I have gone through the record of courts below. 10. In view of the rival contentions at the Bar, the first question that arises for consideration is whether a statutory bar under Section397(2) of the Code for entertaining a second revision at the instance of the petitioner would operate as a bar for exercise of inherent power of this Court under Section 482 ? In this connection the decision of the Supreme Court in the case of Dharampal and Ors. V. Smt. Ramshri and Ors. reported in : AIR 1993 SC 1361 is to be seen. In the aforesaid case, their Lordships of the Supreme Court held: "...... It is now well settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instances of 1st respondent....... " In that case, the order of the Magistrate as well as the order of the Sessions Judge in revision was found to be patently erroneous and the High Court had interfered with that order in exercise of power under Section 482, but the Supreme Court came to the conclusion that the High Court should not have interfered with the order in exercise of power under Section 482 of the Code of Criminal Procedure. 11. The Hon'ble Apex Court in case of Rajathi V.C. Ganesan reported in : (1999)6 SCC 326 has held that: "In the present case, the High Court minutely examined the evidence and came to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. 11. The Hon'ble Apex Court in case of Rajathi V.C. Ganesan reported in : (1999)6 SCC 326 has held that: "In the present case, the High Court minutely examined the evidence and came to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. All this High Court did in exercise of its powers under Section 482 of the Code which powers are not a substitute for a second revision under sub-section (3) of Section 397 of the Code. The very fact that the inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles. It was not necessary for the High Court to examine the whole evidence threadbare to exercise jurisdiction under Section 482 of the Code. Rather in a case under Section 125 of the Code trial court is to take a prima facie view of the matter and it is not necessary for the court to go into the matrimonial disputes between the parties in detail....... " 12. In view of the parameters fixed by the Apex Court with regard to the circumstances where the inherent powers could be exercised, the present case would not be one for exercise of said power. As has been held in a catena of cases, the inherent power of the High Court should be exercised sparingly in rare and exceptional cases only when the Court comes to a conclusion that there has been gross illegality committed by the courts below which has caused gross miscarriage of justice. The contention of the learned counsel of the Petitioner is that the finding of the courts below is unsustainable as the evidence has not been properly weighed. On a perusal of the order passed by the trial court and affirmed by the revisional court, it is clear that the respondent is a legally wedded wife of the petitioner, the petitioner has neglected to maintain her, and the wife does not possess sufficient means to maintain herself whereas Petitioner-husband has sufficient means to pay maintenance and, therefore, the maintenance was ordered. The concurrent findings recorded by the courts below does not call for any interference on the grounds canvassed in this writ petition. The concurrent findings recorded by the courts below does not call for any interference on the grounds canvassed in this writ petition. Merely because the wife has not raised any claim for a long period that does not mean that she can be denied maintenance now, when she is claiming the same. 13. The corresponding quantum of maintenance can also not be termed as excessive in the light of social background and standard of living of the parties. 14. For these reasons, none of the contentions raised against legality and propriety of the maintenance order deserves acceptance. As such, no interference with the impugned order is called for. 15. In the result, the petition stands dismissed.