KRISHNA CHAND SAXENA Vs. STATE OF U P

JUDGEMENT

(1.) THE second opposite party Smt. Vimilesh Kumari is the wife of the applicant in this application under section 482 of the CrPC. THE prayer made by the applicant is that the proceedings in the court of the S. D. M. Sadar, Agra and the order dated 28th October, 1976, passed there in may be quashed.

(2.) IT appears, from the reading of the said order which is annexure 'A' to the affidavit of the applicant filed in support of the application, that the S. D. M. had by an order dated 6th June, 1973, ordered payment of maintenance at the rate of Rs. 100/- per month by the applicant-husband to the opposite party-wife from the date of the original application in that court. That order appears to have been passed under section 488 of the CrPC 1898. The respondents revision against the same was dismissed where upon he applied to this court for revision and by an interim order dated 12th September, 1974, this court suspended the payment of maintenance ordered by the learned Magistrate provided the applicant-husband paid 50 percent of the maintenance allowance at the close of each month and also paid the entire arrears upto the date of the interim order. In case of defaul, the stay order was to stand automatically vacated. The applicant not having complied with the conditions of the interim order, the second opposite party-wife applied to the S. D. M. on 1st January, 1975, for recovery of the sum of Rs. 6,340/- as the arrears of maintenance for the period 28th August, 1969 to the 10th December, 1974 and a warrant for recovery of that amount was issued by the Magistrate on 3rd January, 1975. The warrant was returned by the police with the report dated 21st January, 1975, asking for the permanent address of the applicant, whereupon the second opposite party made another application dated 2nd March, 1975, for a fresh warrant of recovery which was also returned with the police report that the applicant who is an advocate was living in house No. 78 Ashok Nagar, but had left that place along with his new wife Smt. Deo Kunwar and was living in the house of Sri Chandra Datta Sharma in plot No. D-112, house No. 529, Lal Kothi, Babu Nagar, P. S. Adarsh Nagar, Jaipur. On this report, the second opposite party made an application on 10th April, 1975, for recovery by the arrest of the applicant. On this, the applicant filed an objection in the court of S. D. M. on 16th April, 1975, to the effect that the court had no jurisdiction to take proceeding for recovery under the CrPC, 1973. That objection was rejected on 21st April, 1975, and it was held that, that court had jurisdiction to proceed with the recovery. On this, the applicant filed an application dated 24th April, 1975, praying for stay of recovery proceeding and by another application, he alleged that the second opposite party was leading a life of adultery. On this application, the court of Sub Divisional Magistrate stayed the recovery proceedings by an order dated 18th October, 1975, and directed that evidence may be led in support of the allegation that the second opposite, party was living in adultery. The second opposite party then applied on 3rd December, 1975, in the court of the Sub-Divisional Magistrate for proceeding with the recovery on the ground that the applicant had not complied with the orders of this court. The impugned order dated 28th October, 1976, further shows that the first question which arose before the learned Magistrate was about the date from which the cancellation of the maintenance order on the ground that the wife was living in adultery could be deemed effective in case it was so cancelled and on this question, the attention of the learned Magistrate having been drawn to a ruling reported in Smt. Kalyanl Devi v. Nirmal Kumar Panda, 1957 Cr. L. J. 177 he found that the maintenance allowance was payable upto the date on which the maintenance order is cancelled on the ground that the wife is living in adultery The learned Magistrate held that in view of the said ruling, there was no justification for staying the recovery proceeding till such time as the maintenance order was actually cancelled. He accordingly ordered that the recovery should proceed tart at the same time permitted the parties to lead evidence on the question whether the wife was living in adultery. The aforesaid order of the learned Magistrate was upheld by the court of Sessions Judge, Agra, by an order dated 25th February, 1977, dismissing the applicants' revision there from.

(3.) NOW, although when the count of the learned S. D. M. held on the 21st April, 1975, that it had jurisdiction to proceed with the recovery, there was some doubt about the correct interpretation of the relevant provisions of the CrPC, 1973, the problem seems to have been resolved by now and it can be said with certainty that jurisdiction to recover the amount of maintenance under an order passed by a S. D. M. under section 488 CrPC vests in the court of Judicial Magistrate concerned after the enforcement of the CrPC, 1973. It must, therefore, be held that the aforesaid proceedings for recovery taken in the court of the S. D. M., Sadar Agra, are without jurisdiction but this does not necessarily mean that the proceedings for recovery must be quashed, for by doing so, the recovery of the amount of maintenance in arrears for a period of more than one year preceding the date of the application for recovery will become time-barred and this result would follow for no fault of the send opposite party who has been bona- fide and with due diligence pursuing her application for recovery of the amount of maintenance in arrears ever since she made her application before the S. D. M. The proper order for this court to pass, therefore, appears to be to transfer the said recovery proceedings from the court of S. D. M., Sadar, Agra, to the court of the Judicial Magistrate having jurisdiction to proceed with the same. This court can make that order suo moto on its own initiative in exercise of its powers under section 407 (2) of the CrPC, 1973, When I put this position before the learned counsel for the applicant, he agreed with me after consulting the applicant who himself happens to an advocate that this would be an eminently a proper order to pass.