JAYPRAKASH SUMMANTRAO KALE Vs. CHANDRAKALA JAYPRAKASH KALE

JUDGEMENT

(1.) The petitioner-husband has filed this criminal application under section 482 of the Code of Criminal Procedure, 1973, challenging the legality and correctness of the orders passed by the courts below. The first respondent claims to be the wife of the petitioner and second respondent is the son born out of the said wedlock. The third respondent is the State of Maharashtra. The respondents Nos. 1 and 2 filed an application under section 125 of the Code of Criminal Procedure bearing Maintenance Application No. 1190/81 in the Court of Judicial Magistrate, First Class, Pune, claiming the maintenance for herself and for her minor child. It is alleged by the respondents in their application that the petitioner husband has filed and neglected to maintain them. This application was filed on or about in September 1981. After service of the summons of the said maintenance application, the petitioner filed his written statement on or about March 15, 1981 denying the allegations. The maintenance application is pending for final hearing. During the pendency of this application, the first respondent came to know that the petitioner has taken a second wife viz., Pushpa Niwrutti Kund and the said marriage came to be performed on or about April, 1982. After coming to know of this second marriage of the petitioner with Pushpa, the first respondent on November 10, 1982, preferred an application to the trial Court praying for an amendment of the original application. The amendment sought was "that the petitioner has married with Pushpa some time in the month of April, 1982 and the said marriage is illegal". The petitioner opposed this amendment application on various grounds. Firstly it was contended that such an amendment application cannot be entertained is the same is beyond the powers of the trial Court inasmuch as there is no provision under the Code permitting such amendment. He also denied the second marriage. The application for amendment is illegal and the same be dismissed.

(2.) The trial Court after hearing both the parties by its order dated February 16, 1983 granted the said amendment application filed by the first respondent. The amendment was accordingly incorporated in the application at the end of paragraph 2 of the maintenance application. Aggrieved by this order, the petitioner preferred a revision application to the Sessions Court and the learned Sessions Judge, Pune, after hearing both the parties, by his order dated July 21, 1983 dismissed the said revision application and confirmed the order passed by the Court below. It is against the concurrent order passed by the Courts below, the petitioner has preferred this criminal application under section 482 of the Code of Criminal Procedure.

(3.) Shri Anturkar, the learned Counsel appearing in support of this application vehemently urged that the provisions in connection with the maintenance contained in section 125 to 128 of the Code of Criminal Procedure being self contained Code and since the framers of the said provisions have not made any provision in connection with the amendment, it must be held that the legislature never intended to permit either of the party to amend the maintenance application which is filed under section 125 of the Code. Shri Anturkar then urged that in the absence of any provision permitting such amendment, the courts below have committed jurisdictional error while granting such an amendment. The impugned orders are thus without jurisdiction and must be quashed and set aside. He also submitted that the courts below while granting the amendment purported to take recourse to the section 482 of the Code of Criminal Procedure which could be availed only by the High Court and not by the courts below. The impugned orders are thus illegal and deserves to be quashed and set aside.