MOHINDER SINGH Vs. JOGINDER KAUR

JUDGEMENT

(1.) JOGINDER Kaur respondent filed a petition Under Section 488 of the old code of Criminal Procedure claiming maintenance against her husband. After a protracted trial, the learned Judicial Magistrate 1st Class Barnala passed an order in her favour on 9-10-1979 granting maintenance at the rate of Rs. 70/- per mensem. Mohinder Singh the husband (the present petitioner), filed a criminal revision before the Court of Session. Barnala. Before the Additional Sessions Judge, Barnala, who was seisin of the case, an objection was taken that the wife had to show that she had not any means of livelihood or that she was not owner of any property from which she could maintain herself. Before the trial Magistrate as well, it was contended that there was no recital in the application that Joginder Kaur was unable to maintain herself nor was there any evidence led on the point. The revisional Court dismissed the revision. Now the husband-petitioner has invoked inherent powers of this Court Under Section 482 of the Code of Criminal Procedure, 1973.

(2.) MR H. S. Mann, learned Counsel for the petitioner, has contended that it is pre-requisite of Section 125 of the Code of Criminal Procedure, 1973 that the wife has to allege in the petition that she is unable to maintain herself and not to rest content with that, but has further to prove this assertion. According to him, at both the stages the particulars are lacking. Concededly, there is no such averment in the petition. But in her statement the wife has said that she was dependent on her father and brothers.

(3.) IT is significant to point out that the petition for maintenance was filed under the old Code of Criminal Procedure wherein there was no such prerequisite for the wife specifically pleading that she was unable to maintain herself or leading evidence in that connection. I had occasion to deal with a case arising Under Section 125 of the Code of Criminal Procedure, 1973 in Smt. Jito v. Buta, Criminal Revn. No. 370 of 1980 decided on 7-1-1981 (Puni and Har) and had observed as follows; Proceedings Under Section 125 are neither criminal trial nor a trial of a civil suit. In my view, the strict observance of the principle of civil law with regard to pleadings would not be strictly applicable to these proceedings. Though it will be desirable that such a pleading, that the wife was unable to maintain herself should be forthcoming as also why was she unable to maintain herself in the manner and status in which she would be maintained in her husband's house, the absence of such pleading cannot for all intents and purposes be termed as fatal. It would at best an irregularity which would not vitiate the proceedings unless the omission stands pointed out by the husband at the earliest stage in the proceedings. In such a situation, the omission could be supplied by amendment of the petition by pleading the necessary facts. But if no such objection is taken by the husband at the earliest stage of the proceedings. he cannot object to evidence of the wife being led to show her inability to maintain herself. The statement of the wife could adequately then be tested by him in cross-examination and countered by him in the production of his evidence in defence. In all situations, the Court of revision has only to satisfy whether a failure of iustice has in fact been occasioned in the proceedings in the facts and circumstances of each case. But if the statement of the wife remains even silent as to the all important factor of her inability to maintain herself, then the criminal Court has no option but to dismiss her petition, despite the husband having sufficient means, neglecting or refusing to maintain his wife.