ISWAR CHANDRA NAIK Vs. ALLAHADINI SAHU

JUDGEMENT

(1.) The revisional order of the learned Additional Sessions Judge, Bolangir, in Criminal Revision No. 40/2 of 1993 dismissing the petitioner's revision arising out of a proceeding under Section 125 of the Code of Criminal Procedure is sought to be assailed in this application by invok ing the inherent power of the court under Section 482 of the Code. The main round of attack is that the learned magistrate as well as the learned Addi tional Sessions Judge committed an error in record ing a finding that the opposite parties are the wife and son of the petitioner respectively.

(2.) On the petition of opposite party no. 1 for self and for opposite party no. 2 under Section 125 of the Code of Criminal procedures claiming maintenance from the petitioner alleging that said opposite party no. 1 had married the petitioner on 23-2-1986 ac cording to the Hindu rites in a Shiva temple and opposite party no. 2 was born out of their wedlock and that the petitioner is neglecting to maintain them, the petitioner appeared before the magistrate and denied the factum of marriage. He also denied the opposite party no. 2 is his son. The learned magistrate recorded evidence of witnesses of both parties and on a thorough scrutiny of the same came to the conclusion that opposite party no. 1 is the legally married wife of the petitioner and opposite party no. 2 was horn out of their wedlock. He further found that the petitioner wilfully neglected to maintain them and on the basis of the income of the petitioner awarded maintenance at the rate of Rs. 150.00 per month in favour of the opposite parties. The petitioner challenged the said order in revision before the learned Session Judge which was heard by the Additional Sessions Judge, Bolangir. The main contention raised by the petitioner before the learned Additional Sessions Judge was that the con clusion of the magistrate is based upon erroneous appreciation of the evidence and the said conclu sion, therefore, must be interfered with. The revisional Court in view of the contention raised re -appreciated the evidence and affirmed the conclu sion of the magistrate and held that the petitioner and opposite party no. 1 lived together as man and wife and opposite party no. 2 was born to this union. So far as the quantum of maintenance is concerned, the revisional Court also took into account the income of the petitioner whose monthly income was Rs. 2000.00 from his salary and held the amount of maintenance granted by the magistrate cannot be said to be excessive in any manner. The said revision having been dismissed, the petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal procedure, since a second revision at the instance of the petitioner is barred under Section 397(2) of the Code.

(3.) Mr. Nanda appearing for the petitioner con tends that the finding of the forums below to the effect that opposite party no. 1 is the legally married wife of petitioner is a perverse finding on the face of it and, otherwise there will be a gross miscarriage of justice if the finding is not interfered with and, on the other hand, the order of maintenance granted in favour of the opposite parties on that basis is sus tained. Mr. Pujari appearing for the opposite parties, on the other hand, contends that the inherent power of this Court should not be invoked where the statute itself prohibits a second revision at the instance of the petitioner. He further contends that even if the power could be exercised, but in the facts and circumstances of the present case, when the forums below on appreciation of evidence have recorded a finding that opposite party no. 1 is the legally married wife of the petitioner and opposite party no. 2 is born out of their wedlock, such a finding cannot be interfered with by re-appreciating the evidence even though this Court may come to that conclusion independently.