PREMWATI Vs. MAHESH CHANDRA

JUDGEMENT

(1.) This is an application under Sec 482 of the Code of Criminal Procedure. The applicant wife had made an application claiming maintenance under Sec. 125 of the Code of Criminal Procedure, 1973, against her husband who is the opposite party. The learned Magistrate dismissed the applica tion by an order dated 2 ()th January 1978, on the ground that the applicant had not stated any where in her application that she was unable to maintain herself, and further that she was unable to prove that the opposite party was a bad character ; and that he did not maintain her inspite of having means to do so. On revision in the court of the 1st Additional Sessions Judge, Aligarh, the learned Judge maintained the dismissal of the application for main tenance. He held firstly that the appli cant's allegation of illicit relationship between the opposite party and his 'bhabhi' did not inspire confidence ; that the solitary instance of taking liquor on occasion of Holi did not mean that the opposite party is a habitual drunkard which might have given a cause to live separately and claim maintenance, and, that the applicant's allegations that she had been beaten and turned out by the husband, could not be believed; that no report was lodged with the police and the alleged injuries were not examined by any doctor and that, therefore, the allegation appear to have been made simply for the purposes of the case ; and lastly, that after the arrival of the appli cant at her father's house, the opposite party gave a notice to her father alleging that she had been deceitfully brought from his house some eleven months ago and she had carried her clothes% and arnaments worth Rs. 10,000/- but was not being allowed to return because the father wanted to marry the applicant to some body else and, as the application for maintenance was filed after the said notice to which a reply was given deny ing the allegation, and at about the same time a complaint had also been filed by the opposite party against the applicant's father for an offence punishable under Sec. 342/498 of the Indian Penal Code, it appeared that the application was not made bona fide. Having heard the learned counsel for the contesting parties, it appears to me that in the present case, both the courts below have refused to exercise the juris diction under Sec. 125 of the Code of Criminal Procedure on assumptions and irrelevant considerations. The assump tion made by the learned Magistrate that the applicant had not stated any where in her application under Sec. 125 Cr. P. C. that she was unable to maintain herself is belied by paragraphs 9 and 10 of the application. The written statement filed by the husband shows that he was very displeased with his father-in-law, that does not, however, mean that the husband should not try to bring the wife back or to maintain her, particularly, when he had no complaint against her character. The fact that the husband had filed a complaint against the wife's father for offences under Sec 342/498 Indian Penal Code, does not indicate that the husband wanted to bring his wife back and she refused to return to him without any sufficient" reason. Indeed the learned Magistrate ought to have examined the parties before him and ascertained whe ther the husband wanted her to come back but she was refusing to do so with out any sufficient reason. Since the wife had moved an application under Sec. 125 of the Code, she must have appeared before the learned Magistrate and the husband must have also appeared at about the same time So far as the husband's allegation against the wife's father are concerned, they are the subject-matter of a separate trial and, if true, the wife's father would be punished therefore. The pendency of that complaint had no relevance to the proceeding under Sec. 125. The disbelief of the wife's evidence by the two courts below on the ground that she did not lodge any First Informa tion Report with the police about the alleged incident of beaing and having turned out of the house and did not get her injury examined by a doctor, does not accord with the presumption which may be lawfully drawn from the common course of human conduct. I say so because a case of wife lodging a report with the police, on having been beaten and turned out of the house by her husband is rather uncommon. The common conduct of wife in these matters is to quietly go back to her father's place of shelter. It is also uncommon for a wife, particularly if she belongs to a village and is not well-off, to go to a doctor and get an injury report to prove the fact that she was beaten by the husband. The finding of the learned Magistrate on this point and that of the learned Sessions Judge confirming the same, are more mechanical than based on a proper appreciation of the facts and circumstances of the case. I have already referred to the fact that the learned Magistrate is in error when he observed that the wife's application for maintenance does not contain the allega tion that she is unable to maintain herself. The husband-opposite party is, on his own admissions, a man having sufficient means and if he really wanted her wife back, he could have easily made an offer in the course of the proceedings before the learned Magistrate requesting him to help him in getting her back and if that were not possible, to have filed a suit for restitution of conjugal rights against the wife in a civil court, rather than to depend on the complaint made by him against his father-in-law for the offences under Sees. 342/492 Indian Penal Code, for the purposes of getting back his wife. It appears from the rejoinder affidavit of Phool Chand, who is the aspplicant-wife's brother, that the opposite party, husband has filed a petition for divorce in the court of the Civil Judge, Aligarh, which is matrimonial case no. 126 of 1979 in that court. Learned counsel for the opposite party contended that the present application under Sec. 482 of the Code of Criminal Procedure was not maintainable, in view of the bar against a second revision imposed by Sec. 397 (3) and Sec. 399 (3) of the Code and relied upon the case of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1 ). The conten tion of the learned counsel is, however, not tenable in view of the decision of the Supreme Court in Madhu Limaye v. State of Maharashtra (A. I. R. 1978 S. C. 47.), wherein the Supreme Court modified its earlier deci sion in Amarnath v. State of Haryana (A. I. R. 1977 S. C. 2185), and held that the bar of revision by the same person against an interlocu tory order did not apply to the exercise of its inherent powers by the High Court under Sec. 482 of the Code of Criminal Procedure. I may add that the bar against a second revision by the same person imposed by sub-section (3) of Sec, 397 or the finality attached to the decision of the learned Sessions Judge on an application in revision under sub section (3) of Sec. 399, are only "in relation to that person in the revisional jurisdiction of the High Court, and do not divest the High Court of its jurisdic tion to revise the order of the Sessions Judge or of the Magistrate in the preced ing giving rise thereto. " The bar is only against the person who applies for revision in the court of Sessions. The learned counsel for the opposite party then referred to the decisions of the Supreme Court in State of Orrissa v, Ram Chand Agarwal. (A. IR. 1979 S. C. 87.) and Jagir Singh v. Ranvir Singh (A. I. R. 1979 S. C. 381 ). These cases are clearly distinguishable and do not touch the question before me about the maintainability of the present application under Sec. 482 of the Code. In the result, this application must succeed and the orders of the two courts below must be set aside, but the question still remains whether I should look into the evidence and decide the case here and now or remand it to the learned Magis trate for a fresh inquiry. Keeping in view the object of the provision of Sec. 125 of the Code of Criminal Procedure and the summary nature of the proceed ings thereunder, and the fact that the husband has already filed a petition for divorce against the wife in the court of Civil Judge, Aligarh, being matrimonial case no. 126 of 1979, as recently as 3uth May, 1979. I am of the view that the ends of justice would be served if the present proceedings under Sec. 125 are althogether quashed and the parties are left to pursue their remedies before the civil court, in the said matrimonial case no. 126 of 1979, in the court of civil Judge, Aligarh, or in any other proceed ings which they may like to institute, as may be permissible in law. I order accordingly. .