RAM KISHORE Vs. SM BIMLA DEVI

JUDGEMENT

(1.) Shrimati Bimla Devi, wife of the applicant Bam Kishore, claimed maintenance from him. The Magistrate awarded maintenance to her as well as her child, although the applicant had contested her claim. The applicant went up in revision, but his revision application was also dismissed. Bimla Devi then filed an application for the recovery of the arrears of maintenance which had been awarded to her and her son. Notice was issued to the applicant and he contested this application again on the grounds that Bimla Devi was refusing to live with him without sufficient reason and was living in adultery. He therefore, prayed that Bimla Devi's prayer should be rejected and no distress warrant should be issued against him.

(2.) The learned Magistrate came to the conclusion that the objection filed by the applicant was mala fide & was lodged only to delay the execution of the order passed against him. It may be mentioned here that the applicant had not taken the plea of his wife's adultery when the main case was contested. The Magistrate also held that even if it foe accepted that Bimla Devi is living in adultery, there was no justification for not paying the maintenance legally awarded to her upto the time when she contracted any adulterous relationship. In his opinion no retrospective effect could be given to an order and so he did not reopen the inquiry and dismissed the objection filed by the applicant. He, however, observed that if the objection of the applicant was meant to be an application for the cancellation of the order of maintenance, it can be filed separately under Section 488 (5). Cr. p. C.

(3.) The applicant went up in revision against this order. It was contended on his behalf that under Clause (3) of Section 488, Cr. P. C., he was entitled to show cause why he failed to comply with the order passed against him and, therefore, as Bimla Devi was living in adultery and was also keeping away without any justifiable reason, it was the duty of the Magistrate to enquire into the matter. This contention was not accepted by the learned Sessions Judge and he confirmed the order passed by the Magistrate.