SUDESH KUMARI Vs. SOM NATH

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 6. 5. 1988 of Shri D. S. Chhina, Additional Sessions Judge, Gurdaspur, whereby he accepted the revision petition and set-aside the order, of Shri D. K. Sarpal, Judicial Magistrate Ist Class. Pathankot, dated 14. 10. 1986 allowing maintenance to Sudesh Kumari, petitioner, at the rate of Rs. 200/- per month and to Mamta, petitioner, at the rate of Rs. 150/- per month in proceedings under Section 125 of the Code of Criminal Procedure against the respondent.

(2.) BRIEFLY stated, the facts of the case are that Sudesh Kumari is the wife of the respondent and Mamta is their daughter. Both of them filed a petition under Section 125 of the Code of Criminal Procedure for the grant of maintenance against the respondent. It was alleged by Sudesh Kumari that she had been deserted and neglected by the respondent since March, 1978 and ever-since she had been living with her mother at village Azizpur. In March, 1978 she was present from the respondent and gave birth to co-petitioner Mamta in the house of her parents, but the respondent neglected and refused to maintain them without any reasonable cause. Earlier, both of them had filed a petition under Section 125 Cr. P. C. against the respondent which was rejected on 18. 2. 1983 and that order was affirmed in a revision petition by the learned Additional Sessions Judge, Gurdaspur. The ground taken In those proceedings by the Court was that Sudesh Kumari was living in adultery and she gave birth to Mamta during the course of such adulterous life and not from the loins of the respondent. Taking advantage of the said decision Som Nath filed a petition for dissolution of the marriage under Section 13 of the Hindu Marriage Act in which he alleged that Sudesh Kumari, Petitioner, was leading an adulterous life and that Mamta was her illegitimate child born on 18. 11. 1978 though she had allegedly left his house in 1977. The learned District Judge, who tried the said petition, did not rely upon the earlier decision of the Criminal Courts and dismissed the petition of the respondent vide order dated 5. 3. 1985 holding that Sudesh Kumari was not a woman of loose character and that she had no affair with anybody else before or after the marriage. In the instant proceedings Sudesh Kumari and Mamta had alleged that the judgments of the Criminal Courts under Section 125 Cr. P. C. in the previous proceedings between the parties were wrong and erroneous and further that the respondent had levelled false accusations against her and had refused to maintain her without any reasonable excuse. They asserted that he is earning Rs. 4,000/- per month and hence they claimed maintenance of Rs. 500/- per month each. In the written reply filed by Som Nath, he objected to the maintainability of petition under Section 125 Cr. P. C. in view of the fact that the earlier identical petition was dismissed by Shri U. S. Gera, Judicial Magistrate 1st Class, Pathankot, on 18. 2. 1983 and the revision petition against that order was also dismissed on 7. 9. 1983 by the learned Additional Sessions Judge. He added that Sudesh Kumari had left his house in June, 1977 and that she was leading an unchaste life and further that Mamta was her illegitimate child; he denied the petitioner's plea that latter was pregnant when she left his house in March, 1978. He admitted that he had filed a petition under Section 13 of the Hindu Marriage Act against the petitioner but maintained that the judgment of the District Judge Gurdaspur, can only be treated as a judgment of a Matrimonial Court and therefore, it is not helpful to petitioners in the present proceedings. The parties led evidence before the trial Court and the learned trial Magistrate, Shri D. S. Sarpal, fixed compensation payable by the respondent to the petitioners at Rs. 200/- per month and Rs. 150/- per month, respectively.

(3.) EXHIBIT Rule 2 is the order dated 18. 2. 1983 of Shri U. S. Gera in the petition under Section 125 Cr. P. C. which the petitioners had initially filed on 5. 2. 1982 against the respondent. In these proceedings the respondent had pleaded that Sudesh Kumari was leading an adulterous life and Mamta was her illegitimate child. This, plea, was accepted by the learned Magistrate and he dismissed the said petition. Ex. R-3 is the copy of the order dated 6. 9. 1983 of Shri D. S. Dhaliwal, learned Additional Sessions Judge, Gurdaspur, whereby he dismissed the present petitioners' revision against the said order of Shri U. S. Gera, Judicial Magistrate Ist Class. The respondent appears to have been encouraged by these orders and as a result thereof he filed a petition under Section 13 of Hindu Marriage Act for a decree of divorce against the petitioner in the Court of District Judge, Gurdaspur, on 24. 1. 1984. Exhibit A-l is the copy of the order dated 5. 3. 1985. Of Shri R. K. Singal, learned District Judge, Gurdaspur, dismissing the respondent's petition whereby he held that the evidence produced by Som Nath, respondent, was insufficient to prove that Sudesh Kumari had voluntary sexual intercourse with any other person other than him after the solemnisation of marriage between the parties. Consequently, he (learned District Judge) dismissed the petition. Neither the respondent filed any appeal against this order of the learned District Judge nor the petitioners preferred any appeal against the order of Shri D. S. Dhaliwal, learned Additional Sessions Judge dated 6. 9. 1983, whereby he had dismissed the petitioners' revision against the order of Shri U. S. Gera, Judicial Magistrate Ist Class. The conclusion reached in the impugned order by the learned Additional Sessions Judge is that so long as the previous orders Exhibits R-2 and R-3 of the Criminal Courts under Section 125 Cr. P. C. are there and so long as Sudesh Kumari, petitioner, does not get a decree of declaration of her status and of Mamta Rani under Section 9 of the Code of Civil Procedure and under Section 36 of the Specific Relief Act against the respondent, she is not entitled to file a fresh petition under Section 125 of Cr. P. C. By implication the import of the impugned order is that the judgment Exhibit A-l of the Matrimonial Court dismissing the respondent's petition under Section 13 of Hindu Marriage Act against the petitioner for divorce on the alleged ground of Sudesh Kumari, petitioner, leading an adulterous life is not a Civil Court judgment and, therefore, not binding on the Criminal Courts in these proceedings and in the circumstances the petitioners would stand debarred from claiming maintenance in view of the dismissal of their previous petition under Section 125 Cr. P. C.