NAJMUL HASAN Vs. NOOR

JUDGEMENT

(1.) THIS is an application under Section 482, Cr.P.C. arising out of proceedings under Section 125, Cr.P.C., 1974. An application was made by the opposite party Smt. Noor Jehan claiming maintenance for herself and her minor daughter Kumari Noor Begum. The application was moved on July 16, 1975. An order was passed by the trial court granting maintenance to her and her daughter on May 23, 1977. The applicant Najmul Hasan before this Court preferred a revision against the said order which was allowed by the Sessions Judge on August 1, 1977. He set aside the order passed by the trial Magistrate and remanded the case to the trial court on the ground that no allegations had been made in the application, that the wife and the minor daughter for whose benefit maintenance was claimed, were unable to maintain themselves. In the remand order it was specifically directed that parties shall be allowed to lead evidence on the said point. The applicant Najmul Hasan submitted to the said order. After the order of remand the parties led additional evidence on the point stated above. After hearing the parties and per using the record of the case the trial Magistrate by his order dated September 29, 1979 partly allowed the application of Smt. Noor Jehan. He granted her maintenance at the rate of Rs. 60/- per mensem. Maintenance was awarded to the daughter of the parties at the rate of Rs. 40/- per mensem. Payment of the maintenance was made effective from October 1, 1978. Against the said order both the parties preferred revisions. The III Additional District and Sessions Judge, Saharanpur by his judgment and order dated April 30, 1979 allowed the .revision preferred by Smt. Noor Jehan. He modified the order of the trial Judge by granting maintenance to Smt. Noor Jehan at the rate of Rs. 120/- per mensem. The maintenance awarded for the daughter of the parties, viz., Kumari Noor Begum was enhanced from Rs. 40-to Rs. 60 per mensem. The order of payment of maintenance was made effective from June 16, 1975, that is the date of application under Section 125, Cr.P.C. The revision preferred by Najmul Hasan applicant was dismissed by the Sessions Judge. Aggrieved by the judgment and order of the Sessions Judge dated April 20, 1979, Najmul Hasan has now invoked the inherent jurisdiction of this Court under Section 482, Cr.P.C. When the matter came up for hearing before this Court on September 5, 1979 an Hon'ble Single Judge of this Court directed that the application under Section 482, Cr.P.C. may be treated as a revision. In this connection reference may be made to sub-section 3 of Section 397 of the Code of Criminal Procedure which reads as follows: - "If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them". The applicant in this case had filed a revision against the order of the trial court before the Court of Sessions. The said revision was dismissed by that Court. A second revision by the applicant, therefore, is not maintainable before this Court. The application was rightly filed under Section 482, Cr.P.C. I am, therefore, treating it as an application under the said section and the learned counsels of the parties have no objection to the course adopted by this Court. On behalf of the applicant it was strongly contended that the Sessions Judge was in error when he passed an order of remand on August 1, 1977. According to the learned Counsel the Sessions Judge had no jurisdiction to pass such an order. He contended that the proceedings subsequent to the order dated August 1, 1977 are nullities and deserve to be quashed only for that reason. Without entering into the merits of the arguments it may be stated that the order of remand dated August 1, 1977 was passed by the Sessions Judge on a revision filed by the applicant himself. The applicant submitted to the order dated August 1, 1977 and did not challenge the validity of the said order by application under Section 482, Cr.P.C. He deliberately chose to obtain a decision in his favour from the trial court and adduced evidence in terms of the order passed by the Sessions Judge. It was only when the order passed by the trial court on May 15, 1978 went against him that he preferred a revision before the Court of Session. As already stated another revision was filed by opposite party Smt. Noor Jehan. Both these revisions were decided against the applicant and it is only now that he has filed an application under Section 482, Cr. P.C. The applicant cannot be allowed to approbate and reprobate. Having taken a chance of obtaining a favorable verdict he cannot be permitted to turn round and assail the validity of the order passed by the Sessions Judge on August 1, 1977. It should also be noted that the rules of procedure are after all intended to promote and further the ends of justice. The said rules are framed to assist a litigant in obtaining redress from a court of law. The rules of procedure would strangely depart from their course if they were allowed to govern where they should subserve. In other words rules of procedure can only be invoked to advance justice and not to obstruct or thwart its course. In the opinion of this court sufficient justice has been done to the parties by permitting them to lead additional evidence in terms of the order of remand passed by the Court of Sessions on August 1, 1977. On behalf of the opposite party Smt. Noor Jehan, my attention has been invited to a decision of this Court in J. N. Datta v. State of U. P. (1. 1977 A.W.C. 88). In that case a Single Judge of this Court observed in a case under Section 125, Cr.P.C. that it is a necessary ingredient of the said section that an averment may be made in the application itself that the wife is unable to maintain herself and in case no such averment is made nor any finding recorded on evidence, the order; passed is not in compliance with the requirements of the said section. It was further remarked that under the Code of Criminal Procedure there is no provision for amendment of pleadings and that it was not possible to permit the wife, who had omitted to make the allegation that she was not able to maintain herself, to amend her application by making an averment to that effect. Nevertheless this Court remanded the case to the trial Magistrate with the direction that it should be decided afresh after giving an opportunity to the parties with regard to the aforesaid matter. The order of the Sessions Judge dated August 1, 1977 was to the same effect, I am in respectful agreement with the decision of this Court in the case of J. N. Datta (supra). The learned counsel for the applicant next contended that the applicant offered to keep the opposite party as his legally wedded wife with due care and affection. In that connection he has invited my attention to the affidavit of the applicant dated June 13, 1978 and to his application dated May 4, 1978. He further submitted that the opposite party in her statement had herself given out that she was prepared to live with the applicant provided the applicant gave an assurance that he would maintain her and keep her with honour and dignity. Learned counsel submitted that the trial court, as well as the court of revision, were in error in deciding this question on the basis of surmises and conjectures and not on the facts on record. He strongly relied on the decisions of this Court in the cases of Guru Prasad v. Smt. Ram Dulari and another (1979 A.W.C. 204.) and Ramji Malviya v. Smt. Munni Devi Malviya (A.I.R. 1959 Alld. 767). I have given due weight to the submissions of the learned counsel but I am unable to accept the same. The count of revision has adverted to the question in some detail, and after considering the relevant material produced on record, it has come to the conclusion that the offers subsequently made by the applicant after the order of remand dated August 1, 1977 were not genuine and had been made only to escape liability for payment of maintenance. The revisional court has referred to the fact that in his written statement the applicant had made scandalous allegations against his wife Smt. Noor Jehan. It was stated by him in the written statement that she had remarried Noor Mohammad. Admittedly this Noor Mohammad treated the father of the opposite party as his own son and had brought him up and had not only performed the marriage of the opposite party but also of her father. Imran, one of the applicant's own witnesses had conceded that the age of Noor Mohammad at the time when the case was being heard was about 80 or 85 years. The allegation that the opposite party had remarried Noor Mohammad was highly scandalous and it was on that basis that the Court of Revision did not attach any importance to the offer made by the applicant. The position in this regard has become worse after the filing of the application before this Court. The applicant filed a supplementary affidavit on May 18, 1979. In paragraph 6 of the supplementary affidavit the following words occur: - "It shows that at the most she could give birth to only one child but the evidence on record shows that she has given birth to three children since October 2, 1972. The Municipal record shows that Kumari Noor Bano, Kumari Hur Bano and one other child was born. The presumption under the Evidence Act is that she was either married to some one else or she was not leading a pious life". Now it may be stated that the opposite party Smt. Noor Jehan has herself admitted in her application that when she was turned out by the applicant from his house on October 10, 1972 she was in a family way and that after corn-in to her parents' house she gave birth to a daughter, Kumari Noor Begum, for whom she also claimed maintenance. I invited the learned counsel for the applicant to point out the evidence on the basis of which averment, quoted above had been made. He very fairly conceded that there was no such evidence on record and he stated that the said averment had been made by the applicant on hearsay and not on his personal knowledge. It may be stated that paragraph 6 of the supplementary affidavit, a portion of which has been extracted above has been verified partly on perusal of the papers and partly on legal advice. The conduct of the applicant outlined above shows that the applicant has lost faith in the fidelity and chastity of his wife. In order to constitute a proper atmosphere for conjugal happiness it is the confidence between the partners to the union which is most essential. Once such confidence in each other or in one of them is eroded a conjugal home is irrevocably broken and cannot be restored. In the circumstances of the case it would be positively hard for the opposite party Smt. Noor Jehan to go back to her husband's home. Such a course on her part may actually lead to disaster. Under the Muslim Law Marriage is a contract. The contract loses all its significance for the married partners and for their children, and thereby for the society if it has merely become an empty shell. The view which I am taking is in accordance with the principles governing marriage in all advance societies and is also in consonance with the ethos of Muslim Society. The so-called offers made by the applicant inviting the wife to resume her conjugal home are mere empty words on which no reliance can be placed. The trial court and the court of revision were therefore right in not countancing the said offers. It was next contened on behalf of the applicant that the trial court had awarded a sum of Rs. 60/- per mensem as maintenance and Rs. 40/- per mensem for the child and the court of revision has erred in raising the maintenance payable to the wife to a sum of Rs. 120 per mensem and to the child to a sum Rs. 60/ - per mensem. According to hi there was no evidence on record to sutain the finding of the revisional court that the applicant's income was so huge that he would be able to pay maintenance at the said rate. In respect of this contention learned counsel has placed reliance on the case of H. Sayeed Ahmad v. Nagnath Parvin Taj Begum (1958 Cr.L.J. 120). In that case there was no evidence for determining the quantum of maintenance payable to the wife and the only fact which the trial court took into consideration in awarding maintenance was the fact that husband was a young man and he had the whole world before him to make progress in life. In this state of evidence Hon'ble Hedge, J., of the Mysore High Court., as he then was, observed that the approach of the trial court, however, we have the evidence of Noor Mohammad and also a certified copy of the plaint filed by a Bank against the applicant and the firm in which he was a partner. Taking all this evidence into account the court of revision observed that the applicant had a well-established business in Woodcraft having dealings with foreign countries. May be that the evidence on the question of the status and the capacity of the applicant to pay was insufficient. However, insufficiency of evidence itself cannot be invoked to quash the order under Section 482, Cr.P.C. I next turn to the last submission of the learned counsel. He has contended that the court of revision was in error in allowing maintenance to the opposite party and the minor from the date of the application. According to him maintenance should have been awarded only from the date when the order was passed by the trial Magistrate i.e., from May 15, 1978. Now sub-section (2) of Section 125, Cr.P.C., lays down that maintenance allowance may be awarded either from the date of the application for from the date on which the order is sassed. The matter was entirely in the discretion of the court of revision. THIS court cannot, while exercising jurisdiction under Section 482, Cr.P.C., substitute its discretion in lieu of the discretion where it has been placed by law. The result is that this application fails and is hereby dismissed. The record of this case shall be sent back to the trial court at a very early date.