KAMLESH KUMAR PATEL Vs. MADHULATA

JUDGEMENT

(1.) The applicant-husband has preferred this petition under Section 482 of Cr.P.C. for quashment of the proceeding initiated by the respondent under Section 125 of Cr.P.C. in the Court of Judicial Magistrate, Ist Class, Katni as MJC No. 44/09 against him for appropriate direction to pay her the sum of maintenance as prayed in the application.

(2.) The applicant's counsel after taking me through the averments of the petition as well as papers placed on record argued that long before at the instance of the applicant a proceeding under Section 9 of the Hindu Marriage Act for restitution of Conjugal Rights was filed against the applicant as Civil Original Suit No. 43-A/02 in the Court of District Judge, Katni. The same was decreed in favour of the applicant, vide judgment, (Annexure P-1), instead that the respondent did not come and reside with the applicant and subsequent to it, she had filed an application under Section 125 of the Cr.P.C. in the Court of Judicial Magistrate, Ist Class, Katni as MJC No. 110/05. The same was dismissed, vide order dated 5.9.2006, (Ann. P-2) holding that she does not have any sufficient cause for residing separately from the applicant.

(3.) On filing the revision by the respondent against such order, (Ann. P-2) before the Sessions Judge as Criminal Revision No. 149/06, on consideration, the IInd Additional Sessions Judge, Katni vide order dated 28.2.2007 by affirming the order of the trial court, dismissed such revision and thereafter no further petition under Section 482 of Cr.P.C. was filed on behalf of the respondent. Subsequent to aforesaid orders near about after more than one year, the respondent herein filed again fresh application under Section 125 of Cr.P.C. in the subordinate court for appropriate direction to the applicant to pay her the sum of the monthly maintenance. In such application, it is stated that in pendency of the aforesaid criminal revision, some compromise had taken place between the parties. Pursuant to that, in changed circumstances, she is entitled for maintenance. In continuation counsel said that in the available scenario such subsequent application of the respondent filed under Section 125 of Cr.P.C. in view of earlier orders could not be entertained. As such the averments of alleged compromise or settlement were not stated anywhere by the revisional court, either in its order, (Ann. P-2) or other place of such revision, (Ann. P-2). By referring some papers, he further said that the respondent being working as Aganwadi Karyakarta in some village is getting Rs.3000/- per month and in such premises, she is not entitled to get any sum of maintenance from the applicant. By referring Section 125 of Cr.P.C., applicant's counsel said that in the lack of believable prima facie evidence in the second application, as per requirement of Section 125 of Cr.P.C., such application could neither be entertained nor adjudicated on merits and prayed to quash the aforesaid second application of the respondent filed under Section 125 of Cr.P.C. by admitting and allowing this petition.