MOHAMMED Vs. ANISH JEENATH SABURA

JUDGEMENT

(1.) The petitioner approaches this Court with a prayer to expunge the remark and comment made beyond the subject matter of maintenance affecting the right of the parties in a connected proceedings made in the order in M.C.No.41 of 2006 dated 16.09.2009 on the file of the Chief Judicial Magistrate Court, Tirunelveli.

(2.) The learned counsel appearing for the petitioner would submit that the respondent is the wife of the petitioner and their marriage was performed on 26.12.2002; since there was a misunderstanding between the spouses, the respondent/wife left the matrimonial home; on 19.07.2006, the respondent/wife has given a complaint against the petitioner and her in-laws and a case has been registered for the offence under Sections 498(A) I.P.C and 4 of Dowry Prohibition Act; after completing the investigation, charge sheet has been filed, which was taken on file as C.C.No.238 of 2007, which is pending before the Judicial Magistrate No.I, Tirunelveli; in the meantime, the respondent/wife has filed a petition in M.C.No.41 of 2006 before the Chief Judicial Magistrate, Tirunelveli claiming maintenance from the petitioner; the Chief Judicial Magistrate, after considering the oral and documentary evidence, has awarded a sum of Rs.2,500/- for wife and Rs.1,000/- each for the children/respondents 2 and 3 per month; but in paragraph Nos.8 and 11 of the order, the Chief Judicial Magistrate has made remarks and comments, which will affect the case in C.C.No.238 of 2007 on the file of the Judicial Magistrate No.I, Tirunelveli; hence, he prayed for the allowing of the application. To substantiate his case, he relied upon the various decisions of the Apex Court and this Court.

(3.) The learned counsel appearing for the respondents would submit that it is not a remark or comment, it is only the conclusion of the Chief Judicial Magistrate that it has not been proved by the petitioners/respondents herein that at the time of marriage, there was a demand of Rs.1 lakh from the petitioner herein; it is not a remark or comment; since the petitioner/wife therein has made an allegation against the husband that at the time of marriage, he demanded a sum of Rs. 1 lakh, but that facum has not been proved by the petitioner/wife hence, the Chief Judicial magistrate has come to the conclusion that the factum has not been proved; neither it is an adverse remark nor an adverse comment; likewise in paragraph No.10, the learned Chief Judicial Magistrate has stated that the averment made by the petitioner/wife that she was ill-treated and subjected to dowry demand has been accepted. The relevant portion is as follows: <IMG> "1k; kDjhuh; gpurtj;jpw;fhf mtUila bgw;Bwhh; tPl;ow;F BghapUe;j rkaj;jpy; 1k; kDjhuh; 8 khj fh;g;gpzpahf nUf;Fk; fhyj;jpy; vjph;kDjhuh; jpUkzk; bra;Jbfhz;Lk; k.rh.M 4,5 d; go vjph;kDjhuh; gzk; bgw;Wf; bfhz;oUg;gJk; kDjhuh;fs; jug;g[ tHf;fhd vjph;kDjhuh; 1k; kDjhuiu ek;gr; bra;fpwJ." </IMG> While deciding the petition under Section 125 Cr.P.C., it is the duty of the presiding Officer to decide as to whether there is a sufficient cause for the wife away from the matrimonial home and then only he can come to the conclusion that the wife is entitled to award maintenance; furthermore, the criminal Court's finding will not bind other courts. Hence, he has prayed for the dismissal of the application.