Purshotam Joshi S/o Manilal Joshi v. Manjula W/o Purshotam
2017-04-26
P.K.LOHRA
body2017
DigiLaw.ai
ORDER : Mr. P.K. Lohra, J. 1. Petitioner has preferred this revision petition under Section 397/401 Cr.P.C. praying therein under-mentioned reliefs:- “It is therefore prayed that order dated 7-3-14-Annx 4 & 5 so passed by the Judge family Court Banswara and order dated 17-5-14 marked annexure 2 & 3 17/5/2014, whereby it has been decide to recover the amount from the salary of the petitioner in criminal case No184/2013 & 185/2013 Manjula v. Purshotam may kindly be quashed set aside and same be declared illegal, and the order of Gram Nayalaya Talwarea dated 18/4/2011 awarding maintenance to the non-petitioners in case No.96/2011 Manjula v. Purshotam may kindly be quashed and set aside.” 2. The facts, apposite for the purpose of this revision petition, are that wife of petitioner, respondent No.1, and her three minor children, jointly filed a petition under Section 125 Cr.P.C. before Gram Nyayalaya, Talwada, District Banswara. In the said petition, it is, inter-alia, pleaded by respondents that petitioner has desisted them and not taking any care for their maintenance. Staking their claim for maintenance as wife and minor children, the respondents quantified maintenance amount to the tune of Rs.5,500/- per mensem. The learned Gram Nyayalaya issued notice to the petitioner but nobody appeared on his behalf, and therefore, Court proceeded ex parte against him. In support of claim, respondent No.1 herself appeared in the witness box and also examined other witness AD2 Devi Lal. After conclusion of ex parte evidence, the learned Gram Nyayalaya, by its order dated 18th of July, 2011, quantified maintenance to the tune of Rs.5,500/- per mensem and directed petitioner to pay the same. Order dated 18th of July, 2011 was neither challenged by the petitioner before appropriate judicial forum within a stipulated period of limitation nor any endeavour was made at his behest for setting aside the ex parte order by resorting to proviso to subsection (2) of Section 126 Cr.P.C. 3. Be that as it may, when the order was not complied with, respondents applied before Family Court for execution of the order passed by Gram Nyayalaya dated 18th of July, 2011. Learned Family Court, while treating the request of the respondents as prayer for execution, proceeded in the matter and accordingly, sent communication to Head Master, Government School, Gamela Phala, Panchayat Samiti, Aspur, District Dungarpur, where petitioner was employed.
Learned Family Court, while treating the request of the respondents as prayer for execution, proceeded in the matter and accordingly, sent communication to Head Master, Government School, Gamela Phala, Panchayat Samiti, Aspur, District Dungarpur, where petitioner was employed. A notice to this effect was issued by the learned Family Court on 17th May, 2014 under sub-section (3) of Section 125 Cr.P.C. It is pertinent to note that execution case of respondents was transferred to Family Court from the Court of Gram Nyayalaya by the order of District & Sessions Court, Banswara. The learned Family Court also issued notices to the petitioner asking him to deposit the requisite arrears of maintenance and to pay maintenance to the respondents regularly. When the said order is not complied with, the learned Family Court was forced to issue letter dated 17th of May, 2014 to the institution where the petitioner is working. 4. I have heard learned counsel for the petitioner as well as learned counsel for the respondents and thoroughly scanned the entire record of the case. 5. At the outset, it may be observed that instant revision petition is preferred by the petitioner assailing three orders passed by two different Courts, i.e, one passed by Magistrate and two other orders passed by the Sessions Court, which is not maintainable. A bare reading of Sections 397 and 401 Cr.P.C. makes it abundantly clear that revisional power can be exercised to examine correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior Court. It is quite surprising that petitioner has laid this revision petition wherein he has assailed three orders, more specifically order dated 18th of July, 2011 is sought to be challenged after a lapse of almost three years. It is noteworthy that during the pendency of this revision petition, learned counsel appearing for the petitioner was confronted by the Court to clarify as to which one of the three orders he wants to assail in this revision petition. On this query of the Court, learned counsel sought time to complete his instructions in the matter.
It is noteworthy that during the pendency of this revision petition, learned counsel appearing for the petitioner was confronted by the Court to clarify as to which one of the three orders he wants to assail in this revision petition. On this query of the Court, learned counsel sought time to complete his instructions in the matter. The order passed by Court in this behalf, dated 15th of January, 2015, is reproduced as under:- Þ;kph us ;g fuxjkuh ;kfpdk ikjhokfjd U;k;ky;] ckalokM+k }kjk ikfjr rhu vkns’kksa ds fo:) izLrqr dh gSA ;kph ds vf/koDrk us fuosnu fd;k fd os ;kph ls lEidZ dj funsZ’k izkIr djuk pkgrs gSa fd o fdl vkns’k ds fo:) fuxjkuh ;kfpdk j[kuk pkgrs gSA izkFkZukuqlkj izdj.k ,d lIrkg i’pkr~ lwphc) fd; tkosAÞ 6. It is clearly apparent that subsequent to that order, learned counsel appearing for the petitioner has not apprised the Court that against which impugned order he wants to confine his revision petition. Therefore, in my opinion, the revision in its present format, wherein three orders are under challenge, is not at all tenable under Section 397/401 Cr.P.C. It is also explicit that petitioner has assailed the order passed by Gram Nyayalaya after a lapse of three years and that too without making any endeavour for setting aside ex parte order by resorting to sub-section (2) of Section 126 Cr.P.C. and its proviso. 7. There remains no quarrel that being husband of first respondent and father of other respondents, petitioner is under legal obligation to maintain them. Learned Gram Nyayalaya has moderately decided the quantum of maintenance, which, in my opinion, cannot be categorized as excessive or exorbitant. The finding of the learned Gram Nayayalaya regarding quantum of maintenance is based on proper consideration of evidence and therefore sans grave illegality same cannot be interfered with in exercise of revisional jurisdiction. 8. From the perusal of the record, it is clearly evident that petitioner sought time on 30th of April 2013 to deposit the amount before learned Family Court, but thereafter, he did not appear on 5th of June, 2013. It is in that background, warrant were issued against him but pursuant to warrant also recovery could not be made, and therefore, the learned Family Court on 7th of March, 2014, issued necessary directions to the institution, where the petitioner was working, to recover the amount of maintenance from his salary.
It is in that background, warrant were issued against him but pursuant to warrant also recovery could not be made, and therefore, the learned Family Court on 7th of March, 2014, issued necessary directions to the institution, where the petitioner was working, to recover the amount of maintenance from his salary. When there was no response from the institution and the petitioner paid a meager sum of Rs.27,500/- the learned Family Court was pleased to pass a detailed order for deduction of Rs.10,000/- per mensem from the salary of petitioner. The order dated 7th of July, 2014, in vernacular, reads as under:- ßizkFkhZ;k Jhefr eatqyk mi0A vizkFkhZ mi0A vizkFkhZ ds cdk;k Hkj.k iks”k.k dh jkf’k olwyh gsrq Cykad izkjfEHkd f’k{kk vf/kdkjh iapk;r lfefr vkliqj }kjk i= izkIr gqvkA voyksdu fd;k o lquk x;kA ÁkFkhZ;k }kjk bl U;k;ky; bl izdj.k ds vykok eqdnek la[;k 185@13 o@13 olwyh gsrq yfEcr gSA ftlesa ls 27500 :i;s dk vkt pSd vnk fd;k gSa izkFkhZ;k la[;k 2 dks ns’ jkf’k ds vykok ns; cdk;k Hkj.k iks”k.k dh dqy jkf’k esa ls izfrekg 10000 :i;s (nl gtkj) vizkFkhZ ds osru ls dVkSrh djus mDr foHkkx dks rgjhj tkjh gksA rFkk izkFkhZ;k }kjk izLrqr cSad dk [kkrk uEcj Hkh rgjhj es vafdr dj Hkstk tkos rkfd lh/ks gh mlds [kkrs esa tek djkbZ tkosA tek djkbZ xbZ jkf’k ckcr~ izR;sd ekg lwpuk Hkstuk Hkh fy[kk tkosA oknh ns[kus rkehy fnukad 10-09-2014 dks is’k gksAÞ 9. It is really quite perplexing that despite order passed by Gram Nyayalaya, petitioner has not made any endeavor to make compliance of the order and is playing a game of hide & seek in paying maintenance to his wife and minor kids. Thus, considering conduct of the petitioner and inordinate delay in assailing the order passed by Gram Nyayalaya, I feel dissuaded to interfere in the matter. It is also clearly apparent that petitioner’s counsel was present before Family Court on 13.04.2013 and sought time to deposit the amount. Later on, neither petitioner nor his counsel appeared, therefore, Court passed consequential orders in execution. Despite knowledge about order dated 18.07.2011 this petition is filed with inordinate delay by suppressing material facts is also sufficient ground to non-suit the petitioner. 10.
Later on, neither petitioner nor his counsel appeared, therefore, Court passed consequential orders in execution. Despite knowledge about order dated 18.07.2011 this petition is filed with inordinate delay by suppressing material facts is also sufficient ground to non-suit the petitioner. 10. As observed herein above, I find no manifest error in the impugned order passed by Gram Nyayalaya and subsequent orders, and therefore, revision petition fails and the same is hereby dismissed on merits as well as delay and non-maintainability. Let record of the trial Court be sent forthwith