RADHAMONI DEI Vs. JUDHISTIRA PRADHAN

JUDGEMENT

(1.) THIS is a revision against an order passed by the Judicial Magistrate First Class in a proceeding under Section 488, Code of Criminal Procedure dismissing the Petitioner 's prayer to order for the payment of the maintenance allowance of Rs. 30/. P.M., previously ordered in her favour, and to increase the said allowance from Re. 30/ - to Re. 50/ - on the ground that another daughter was born to her through the opposite party. The opposite party took the defence that he was unaware of any previous order of maintenance granted in favour of the Petitioner, and that he never paid any allowance to her. He further alleged that the Petitioner was not entitled to any such maintenance as she was living in adultery, which is evident from the fact that she begot her 2nd female child through one Chakradhar Rout, a Contractor, with whom she was living as a kept wife, and the said child was aged about 4 months by the date she filed the petition. It was also urged by the opposite party that the Petitioner was not entitled to any such maintenance as she refused to live with him without any just cause and for sufficient reason.

(2.) CERTAIN relevant findings arrived at by the Court below on thorough and cogent consideration of the affidavits and the evidence on record are as follows:

(3.) IT was contended by Mr. Mohanty, the learned Counsel for the Petitioner, that the petition in the Court below was one under Sub -section 30 of Section 488, Code of Criminal Procedure seeking the enforcement of the order passed previously in the Section 488 proceeding, and 80, in this proceeding it was not open to the opposite party to raise such objection on the grounds of adultery and/or of the Petitioner 's refusal to stay with the opposite party. The opposite party could raise such objections under Sub -section 5 only by a separate petition to that effect. Thus the question in short is whether the plea of adultery and/or the wife 's refusal to live with her husband without sufficient reason, could be raised in proceeding where the wife is seeking enforcement of an order under Section 488, Code of Criminal Procedure passed previously in her favour. Mr. Mohanty in support of his above contention cited the decision in Ram Kishore v. Smt. Bimla Devi and Anr. : A.I.R. 1957 All. 658, wherein Mulla, J. disagreeing with the vie we taken in the decision reported Sangavva v. Gulappa : A.I.R. 1942 Bom. 258 : A.I.R. 1953 Cal 3433 and Hari Narayan v. Mt. Rani Devi, A.I.R. 1952 M.B. 53, and relying on an old decision reported in, I.L.R. 5 All. 2945, held that any such plea cannot be beard at the time when the wife applies for the enforcement of the order of maintenance under Sub -section (3) of Section 488, Code of Criminal Procedure. It is however open to the husband to proceed only under Sub -section (5) praying for the cancellation of the order, and then such a plea can be heard.