PURNA CHANDRA DIGAL Vs. SILA DIGAL @ TUBE DIGAL

JUDGEMENT

(1.) THIS revision is directed against the order of the learned Magistrate rejecting an application filed by the Petitioner under Sub -section (2) of Section 127 of the Code of Criminal Procedure for cancelling the earlier order of the Magistrate dated 11.11.1985 passed under Section 125 of the Code granting maintenance at the rate of Rs. 300/ - per month.

(2.) OPPOSITE party No. 1 for herself and for her minor child (opposite party No. 2) filed an application under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the "Code") alleging that opposite party No. 1 was the legally married wife of the Petitioner and opposite party No. 2 was the child born out of their wedlock and the Petitioner was neglecting to maintain them. This application was registered as Criminal Misc. Case No. 9 of 1984. The Petitioner appeared before the Magistrate and filed his written objection. That application was, disposed of ex parta against the Petitioner by order dated 11.11.1985 granting maintenance in favour of the opposite parties to the tune of Rs. 300/ - per month. The Petitioner thereafter filed an application for setting aside the ex parte order invoking the jurisdiction of the Magistrate under proviso to Sub -section (2) of Section 126 of the Code. That application was registered as Criminal Misc. Case No. 5 of 1986. The learned Magistrate allowed the Petitioner's prayer by his order dated 5.5.1986 and set aside the ex parte order of maintenance dated 11.11.1985 subject to the condition that the Petitioner would deposit a sum of Rs. 5,000/ -. This order of the Magistrate was challenged in this Court by the Petitioner in Criminal Revision No. 332 of 1986. On account of Petitioner's default, the said Criminal Revision was dismissed on 9.3.1987. The Petitioner filed another application for restoration of the said revision, but that was also dismissed on 21.4.1987. The Petitioner then filed a second revision assailing the order of the Magistrate dated 5.5.1985 on 28.5.1987 and that revision was registered as Criminal Revision No. 281 of 1987. This was disposed of by order dated 7.4.1983. It was held by this Court that on merits the impugned order of the Magistrate dated 5.5.1986 is unassailable since there is no unreasonableness in the same and the same has been passed within jurisdiction.

(3.) SO far as the question of lack of jurisdiction of the Subordinate Judge in entertaining an application for annulment of marriage under Section 11 of the Hindu Marriage Act is concerned, Mr. Padhi, the learned Counsel appearing for the opposite parties, fairly states that the Magistrate was in error to come to the said conclusion particularly when the Petitioner and opposite party No. 1 were living as husband and wife before their separation at Bhubaneswar. In this view of the matter, the Magistrate must be held to have erred in law in not taking into consideration the decree of the Subordinate Judge annulling the marriage between the Petitioner and opposite party No. 1. The first contention of Mr. Rath for the Petitioner must, therefore, be upheld.