BABULAL Vs. SUNITA

JUDGEMENT

(1.) This revision petition arises out of an order dt. 13-2-1985, passed by the Judicial Magistrate, 1st Class, Indore in Cri. Case No. 4 of 1984, thereby rejecting the objection raised by the petitioner about the maintainability of proceedings under S.125, Cr. P.C. in face of a decree for restitution of conjugal rights.

(2.) The brief facts are that the respondent Smt. Sunita moved an application for maintenance on 6-4-1984. The petitioner-respondent made his appearance on 31-8-1984 and prayed for copy of the petition, which was supplied to him. The case was fixed for reply on 28-9-1984 and as none appeared for the petitioner, the case was directed to proceed ex parte and 18-10-1984 was fixed as the date for ex parte evidence. On 9-10-84, the petitioner filed his reply. On 16-11-1984 a certified copy of the judgment dt. 13-2-1984, passed by the Addl. District Judge, Burhanpur, was also filed on record. By order dt. 18-10-1984 the trial Court permitted the petitioner to participate in the proceedings. The reply filed by him was taken on record and 16-11-1984 was fixed for evidence of both the parties. It was at this stage that the petitioner moved an application raising an objection that in view of the decree for restitution of conjugal rights passed by the Addl. District Judge, against which no appeal as such was preferred by the respondent, the application for maintenance was liable to be dismissed and should be dismissed without recording any evidence. The respondent Smt. Sunita submitted her reply to this application stating that the decree for restitution of conjugal rights passed against her was obtained ex parte and she could not contest the suit as she was confined to bed and was required to be hospitalised on 5-1-1984. In such circumstances, the ex parte decree obtained by the present petitioner should not be allowed to come in her way of claiming maintenance.

(3.) The trial Court considering the rival submissions made by the parties, rejected the objection raised by the petitioner and fixed the case for evidence on 28-2-1985, but for one reason or the other, it could not be recorded.