HAMEED Vs. AMEENA

JUDGEMENT

(1.) In a proceeding under S.125 of the Criminal Procedure Code the Trial Court and the revisional court concurrently found that the petitioner is liable to pay maintenance to the respondent, his divorced wife. Trial Court fixed the rate at Rs. 100/- per month but the Sessions Judge, in revision by the petitioner, reduced it to Rs 70/-. Parties are muslims and are admittedly divorced. Petitioner challenged the marriage itself as void on the allegation that it took place when the respondent had her former husband living and the marriage subsisting That contention was found against and given up also. The second revision was admitted to the limited extent of considering the quantum of maintenance awarded.

(2.) T am of the view that the revision itself is not maintainable. Though the revision petitioner in this respect sought support from the Full Bench decision in Sivan Pillai v. Rajamohan and others ( 1978 KLT 223 ). I do not think that the decision has anything to do with that question. That decision was only considering the effect of the bar under S.399(3) of the Crl. Procedure Code in relation to the option allowed under S.397(1). It was held that in view of the bar under S.399(3) the option under S.397(1) would be rendered nugatory if a rule of salutary practice is imported that the party should approach the Sessions Judge first before moving the High Court in revision. The revisional jurisdiction of the Sessions Judge and the High Court under S.397(1) are concurrent. The option is on the aggrieved party to decide whether the Sessions Judge or the High Court has to be moved. Ordinarily when more than one forum is having jurisdiction the approach should be to the court lowest in strata. One of the objects of such a rule is to see that the concerned party is not deprived of the chances of appeal or revision. But when S.397(1) is read along with S.399(3) it is evident that so far as the person who filed the revision before the Sessions Judge is concerned the decision of the Sessions Judge is final and no further revision will lie to the High Court at his instance. It is in this context that 1978 KLT 223 held that insistence on the revision being filed first before the Sessions Court will render the option under S.397(1) nugatory because that party has no further right to approach the High Court in revision. The purport of that decision is that a party aggrieved by the order of an inferior court is having the full discretion to choose either the Sessions Court or the High Court as the forum to approach in revision in the first instance.

(3.) But the question for consideration in this revision petition is whether a second revision at the instance of the same party is maintainable or not. The contention of the revision petitioner seems to be that the bar under S.399(3) will operate against the person who approached the Sessions Judge in revision only if the revision is dismissed by the Sessions Judge in toto confirming the order sought to be revised. In other words the contention is that the bar will not apply if the order is set aside or modified by allowing the revision in whole or in part. That contention appears to be meaningless. It is not appealing to reason or commonsense to think that the legislature intended to confer some right to a party who succeed in full or part while negativing such right to a defeated party. The object of the provision contained in S.399(3) is to avoid law's delays by limiting the chance of revision to one for the same person. The experience of the Sessions Judge who decides the revision may be another reason. In this case the revision filed by the selfsame revision petitioner was allowed by the Sessions Judge in part reducing the rate of maintenance from Rs. 100/- to Rs. 70/-. This modification to the advantage of the revision petitioner is the sole basis of his claim that the bar under S.399(3) is not applicable to him and he can come in second revision. He concedes that if the revision was dismissed in toto without interfering with the order of the Magistrate be would not have been able to come upon in revision. I do not understand the logic behind such a contention.