VISHWANATH CHAKRAWARTI Vs. ANJALI CHAKRAWARTI

JUDGEMENT

(1.) This application under Section 482, Cr.P.C. has been preferred against the order dated 17.121981 passed by the 8th Addl. District Judge Allahabad in Criminal Revision No. 463 of 1981 whereby he upheld the order dated 22.6.1981 passed by the Chief Judicial Magistrate Allahabad on the application by the applicant for cancelling the order by which the applicant was directed to pay Rs. 100/- per month to his wife and Rs. 75/- to his daughter per month by way of maintenance under Section 125, Cr.P.C.

(2.) The crux of the matter is that applicant was married to Smt. Anjali Chakrawarti, the Opp-party on 17.1.1975. On 25.3.1976, an application under Section 125, Cr.P.C. was moved by the Opp-party Smt. Anjali Chakrawarti which was allowed, as indicated above, by the Magistrate on 28.2.1977. Without adverting to the other details in respect of the proceedings it will be enough to mention that this order dated 28.2.77 granting maintenance to Smt. Anjali Chakrawarti and her daughter was confirmed by the High Court in Criminal Revision No. 21 of 1978 passed on 4.1.1989, However, in between, on 27.8.1979, the petitioner had filed a matrimonial petition No. 162 of 1979 for divorce. This petition was decreed ex-parte on 10.1.1980 by the I Addl. District Judge, Allahabad. After the divorce had been granted ex-parte to the applicant, he on 15.12 1980 had moved the application alongwith an affidavit for the cancellation of the maintenance award. As according to him, he had also sought a relief in his divorce-petition for the restitution of conjugal rights. It was pleaded by the applicant that as the decree for the divorce, in which the restitution of conjugal rights had also been claimed as a relief, had been passed and had become final, it should now be held that despite a decree for the restitution of conjugal rights, the Opp-party without any sufficient cause was refusing to live with the applicant. Consequently, the application under Section 127, Cr.P.C. was sought to be allowed, as if the wife refused to live with her husband without any sufficient cause, then according to the applicant, she was no-longer entitled to maintenance. Her application having been dismissed by the Chief Judicial Magistrate and the revision against the order preferred by the applicant having been also dismissed by the 8th Addl. District Judge, Allahabad, this application under Section 482 Cr.P.C. was filed which was admitted oh 1.3.1982 and a conditional stay order was granted whereby the recovery of the maintenance had been stayed on the applicant depositing the entire amount of maintenance as granted by the Magistrate upto 31.1.1982 and on the applicant thereafter depositing a sum of Rs. 100/- only per month until further order of this Court.

(3.) I have heard learned Counsels for the applicant as also for the Opp-party. At the outset, an objection has been raised by learned Counsel for the Opp-party that in view of the Full Bench Judgment in the case of N.K. Rawal v. Nidhi Prakash reported in 1989 A.L.J. 732 an application under Section 482, Cr.P.C. is not maintainable after the revision for the same party had been dismissed by the revisional Court. Learned Counsel for the petitioner does not dispute this proposition but argued this case to say that if there may otherwise be merit in his contention, then he may be permitted to convert this application filed under Section 482, Cr.P.C. Into a petition under Article 226 of the Constitution.