SUBHWANTI Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Temporary Sessions Judge, Varanasi, recommending that the order passed by the Magistrate on 41-1965 dismissing an application under Section 488 Cr. P. C. be set aside and the case be sent back to the Magistrate for disposal in accordance with law. A learned Single Judge of this Court, while admitting the reference, expressed the view that it was not at all clear whether the revisional jurisdiction of the High Court under Section 439 Cr. P. C. could be exercised to correct an error in the order passed under Section 488 Cr. P. C. However, inasmuch as such a revision application had been entertained in the case of Shamsher Khan v. Sm. Siddiqunnisa, AIR 1953 All 720 he admitted the reference but directed that the papers be laid before the Hon'ble the Chief Justice for getting the matter decided by a Division Bench of this Court. That is how the case has come before us.

(2.) THE undisputed facts of the case leading to this reference, briefly stated, are that Sm. Shubwanti applicant was the legally wedded wife of Dhanni Ram, Opposite party. About twelve years before the date of the application under Section 488 Cr. P. C. a daughter was born to the applicant and she was alive on the date of the application. The applicant claimed a monthly allowance of Rs. 50 for herself and her minor daughter. The plea taken up by Dhanni Ram opposite party, was that about twelve years prior to the date of the application and soon after the daughter was born the Panches with the consent of both the parties had effected divorce between them and as such customary divorce was recognised in their community, they had nothing to do with each other from the date of the divorce and had been keeping separate from each other with mutual consent. The applicant had filed two documents, to wit (1) certified copy of the kutumb register for the year 1960 to show that she and her daughter had been living with her husband in the same house till the year 1960, and (2) certified copy of the complaint dated 5th August, 1964, filed by one Ram Briksh against Dhanni opposite party under Section 494/498 I. P. C. in respect of Sm. Muneshwari whom the opposite party claimed to have married 12 years ago immediately after having divorced the applicant. The purpose of filing these documents obviously was that the ease taken up by the opposite party was not true. The Magistrate, while considering the effect of the entries made in the kutumb register observed that the same indicated that "sm. Shubwanti lived in the house of Dhanni Ram the opposite party with her daughter" However, he did not consider the effect of that finding during the course of the order which he passed at the time of rejecting the application of Shubwanti and her daughter for maintenance allowance under Section 488 Cr. P. C. He also did not consider the effect of another document filed by the applicant, that is to say, the copy of the complaint referred to above.

(3.) IN view of what has been stated above, the learned Additional Sessions Judge has observed that there are two serious infirmities in the order passed by the Magistrate. The first infirmity is that he did not consider the question of the right of the daughter of the applicant to get any maintenance allowance. Even if the wife was divorced according to the custom prevalent in the society, the right of the daughter to get maintenance allowance was not negatived by the order passed by the Magistrate. However, no maintenance allowance was allowed to her. The second infirmity pointed out was that the Magistrate has failed to consider the effect of the two documents to wit, the copy of the kutumb register for the year 1960, and the certified copy of the complaint under Section 494/498 I. P. C. made on 5th August. 1964. The effect of these documents could be to demolish the merits of the case of the opposite party.