RAJENDRA PRASAD GUPTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This application under Sec. 482, Code or Criminal Procedure has been filed by one Rajendra Prasad Gupta for quashing the maintenance proceedings initiated by his wife Smt. Mamta Devi, Opp. Party No. 2 under Sec. 125, Cr. P.C. before Munsif Magistrate I, Gyanpur, Varanasi in Criminal Case No. 10 of 1987 (Smt. Mamta Devi alias Tota v. Rajendra Prasad Gupta). When this application came up for admission before one of us (Giridhar Malaviya, J.) learned counsel for the applicant placed reliance on the observations of Hon. Deoki Nandan, J. in the case of Smt. Prerhwati v. Mahesh Chandra, reported in 1980 All Cri Rul 70, wherein the Hon'ble Judge had quashed the proceedings under Section 125, Cr. P.C. on the ground that the husband had filed a suit for divorce against his wife. As there were large number of cases of the Allahabad High Court as also the other High Courts which had taken a contrary view, the case was referred to large bench at the state of admission itself so that the controversy may be decided. That is how this petition is now before us for admission.

(2.) It will be useful to consider the facts of the instant case. The applicant claims to have married opposite party No. 2 in Gyanpur on 23-2-1984. Thereafter the husband and wife lived in Allahabad where the applicant was posted, who is a resident of Mirzapur. It is claimed that in August, 1986, the real brother of opp. party No. 2 took her away to her father's place in the garb of visiting her ailing mother. When the applicant later went to the house of his father-in-law in Gopiganj, district Varanasi he found that his mother-in-law was hail and hearty and also learnt that his in law would not send opposite party No. 2 with him on account of some misunderstanding. As his repeated efforts to bring back his wife failed he sent a registered legal notice through his counsel to opposite party No. 2 on 14-5-1987 asking her to join him without delay failing which he proposed to take legal action. A reminder sent on 15-6-1987 also yielded no result. Ultimately on 3-11-1987 applicant claims to have filed a suit under Section 9 of the Hindu Marriage Act against opposite party No. 2 and his father-in-law in the Court of District Judge, Allahabad which was registered as Matrimonial Petition No. 148 of 1987 (Rajendra Prasad Gupta v. Smt. Mamta Devi). Despite several notices to opposite party No. 2, it is claimed by the applicant she did not appear in matrimonial suit, but instead opposite party No. 2, with the object of harassing the applicant, filed an application claiming maintenance from the applicant under Section 125, Cr. P.C. which was numbered as Case No. 10 of 1987. On getting the notice of proceedings u/s. 125, Cr. P.C. from the Court of Munsif Magistrate I, Gyanpur, Varanasi, the applicant moved an application before him to drop the proceedings u/s. 125, Cr. P.C. on the ground that he had already filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights with the result that opposite party No. 2 could claim the maintenance in the matrimonial proceedings itself. According to the applicant since opposite party No. 2 could seek the same relief in the matrimonial proceedings pending since before the initiation proceedings S.125, Cr. P.C., it was nothing but an abuse of process of Court as also unnecessary multiplicity of proceedings. The said application moved by the applicant having been dismissed by the Munsif Magistrate, I, Gyanpur, Varanasi by an order dated 23-2-1988, the applicant has filed the present application in the High Court under Section 482, Code of Criminal Procedure for quashing the proceedings before the magistrate.

(3.) Learned counsel for the applicant has argued not only the law point involved in this case viz. whether in view of pendency of a petition under the Hindu Marriage Act an application under Section 125, Cr. P.C. can still be maintained or not, he has also challenged the correctness of the impugned order dated 23-2-1988. According to learned counsel for the applicant the court below erred in almost believing the plea and the contention of the learned counsel for the opposite party No. 2 that he had instituted matrimonial petition for restitution of conjugal rights in the courts at Allahabad after getting the notice from the court of the magistrate in proceedings under Section 125, Cr. P.C. learned counsel says that whereas his suit under Section 9 of the Hindu Marriage Act had been instituted on 3-11-1987 and was registered as Matrimonial Petition No. 148 of 1987, the opposite party No. 2 had moved her application under Section 125, Cr. P.C. in the court of Munsif Magistrate, I, Gyanpur, Varanasi on 1-12-1987 i.e. almost 28 days after filing of the matrimonial suit. Learned counsel further contends that the observation by the learned magistrate that the applicant's counsel had failed to show the provision under which proceedings under Section 125, Cr. P.C. would be dropped, could not be good ground for the magistrate to reject his application for dropping the proceeding under Section 125, Cr. P.C. Since we are going to consider the question whether the pendency of a matrimonial petition before the matrimonial court should or should not be treated as a bar on the maintenance of a proceeding under Section 125, Cr. P.C. we will obviously consider both these aspects while disposing of this matter.