KULDEEP KUMAR Vs. CHANDER KANTA

JUDGEMENT

(1.) The parties were married on 20-2-1980. Their marriage was dissolved by the Additional District Judge on 6-1-1982. The wife was granted under Sec. 25 of the Hindu Marriage Act, 1955 (the Act) a monthly maintenance of Rs. 200.00 per month with effect from 21-9-1981. Inspite of this order, the learned Metropolitan Magistrate, in a petition under Sec. 125 of the Code of Criminal Procedure 1973 (the code) by his order dated 1-7-1982 granted maintenance at the rate of Rs. 300.00 per month with effect from 20-11-1980. It was submitted before the learned Magistrate that he could not make the order of maintenance because a competent civil court has already adjudicated the matter and has granted maintenance to the wife. The learned Magistrate rejected this argument. On appeal, the learned Additional Sessions Judge in his order dated 17-11-1982 agreed with the submission of the husband that after the permanent alimony has been fixed by the civil court under the Act, the proceedings under Sec. 125 of the Code cannot be initiated nor can any maintenance be fixed. He. however, thought that the question did not call for any serious examination in this case and he resolved the conflict between the order of the Additional District Judge and that of the Metropolitan Magistrate by reducing the amount of maintenance granted by the Magistrate from Rs.300.00 per month to Rs. 200/ per month. The learned Additional Sessions Judge did so in order to avoid the difficulties in execution of either orders simultaneously or one after the other. The husband still feels aggrieved by this order and has filed the present petition under Section 397 of the Code.

(2.) Before I proceed to deal with the main contention, I must dispose of the preliminary objection raised by the learned counsel for the respondent wife. She submitted that in view of Sub-see. (3) of Sec. 397 and Sub-section (3) of Sec. 399 of the code the husband having availed of and lost the remedy of revision is not entitled to make the second revision petition. Faced with this difficulty, the learned counsel for the husband submitted that his petition be treated as a petition under Sec. 482 of the Code. He maintains that such a petition can be made in spite of the bar under Sec. 397(3) and 399(3) of the Code. The learned counsel for the respondent contended that this is not permissible in view of State of 0rissa\. Ram Chander, AIR 1979 SC 87, Smt. Sooraj Devi v.Pyara Lal and another, (1981) 2 SCR485, wherein it was laid down that the provisions of Sec. 561 A (482 new) of the code cannot beinvoked for exercising a power, the exercise of which is expressly prohibited by the Code. In K.P. Kapur v. The State of Punjab, (1960) 3 SCR 388, and Pampapathy v. State of Mysore, (1966) Supp. SCR 477, it has been held that inherent powers cannot be exercised in regard to matters which are specifically covered by or which are inconsistent with, any other specific provision of the code. The court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matters : Palamiappa Gounder v. State of Tamil Nadu, (1977) 3 SCR 132.

(3.) The learned counsel for the petitioner on the other hand relies upon Chandra Prakash Gupta v. State of U .P. and others, 1979 All L.J. 1344. in which it was held that the provisions of Sec. 397 and 399 of the Code could not be a bar to the application under Sec. 482. That seems to be the correct position. This court cannot be made a prisoner of procedure. In Raj Kapoor and others v. Benoyendra Nath Chatterjee, AIR 1980 SC 258, it has been held that even where the High Court cannot revise an order, it is entitled to examine the matter under Sec. 482. I would, therefore, reject this objection.