ASHOK YESHWANT SAMANT Vs. SUPARNA ASHOK SAMANT

JUDGEMENT

(1.) -THE Petitioner Ashok is the husband of respondent Suparna. The respondent had filed proceedings under section 125 of the Code of Criminal Procedure claiming maintenance from the petitioner sometime in the year 1979. It appears that the said proceedings were decided ex-parte in the absence of the petitioner/husband and an order awarding maintenance of Rs. 500/- per month was passed in favour of the respondent/wife.

(2.) THE petitioner who was not intimated about the ex-parte order failed to pay the maintenance awarded to the wife. The respondent/wife then approached the trial Court under section 125 (3) of the Cr. P. C. for recovery of the amount awarded. Even the proceedings for attachment of property of the petitioner proved to be futile as there was no property worth attaching. in these circumstances the petitioner was sentenced to imprisonment by the trial Court, which imprisonment he suffered. It appears that subsequently again the arrears were due and defaulted by the petitioner, for which he had to suffer imprisonment on a second occasion.

(3.) ULTIMATELY on 1st December, 1987 the petitioner filed application under section 127 (1) of the Code of Criminal Procedure seeking modification of award of maintenance on the ground of change in circumstances during the intervening period. The respondent/wife was served and she filed her reply to the application. Thereafter the trial Judge proceeded to frame issues and called upon the parties to adduce evidence. The petitioner/husband led his evidence and also examined two witnesses on his behalf in support of the application for modification of the maintenance. The respondent/wife also entered the witness box and she was examined. It was at this stage and before the cross-examination of the respondent that the respondents Counsel requested the Court not to proceed with the proceedings under section 127 (1) inasmuch as the petitioner has failed to pay arrears of maintenance for the last three years from 1-1-85 to 29-2-88. The respondents Counsel also pointed out that the wife had filed an application under section 125 (3) of Cr. P. C. on 3-3-88 for the recovery of arrears of maintenance for the period 1-1-85 to 29-2-88. The respondents Counsel relied on the judgment of the Supreme Court in (Smt. Kuldip Kaur v. Surinder Singh and another) reported in A. I. R. 1989 S. C. 232 and urged that the proceedings under section 127 Cr. P. C. preferred by petitioner/husband should be stayed or should be proceeded on the condition that all arrears are deposited by him in the Court.