RAHUL LABROO Vs. PRIYA

JUDGEMENT

(1.) The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") for seeking quashing of the order dated 13.3.2015 (Annexure P3) passed by the learned Judicial Magistrate Ist Class, Jind, whereby the application, filed by the respondent-husband, under Section 311 Cr.P.C., has been allowed.

(2.) The respondent-wife has filed a petition under Section 125 Cr.P.C. for grant of maintenance against the petitioner-husband. During the pendency of the said petition, she moved an application under Section 311 Cr.P.C. for recalling her in accordance with the provisions Section 126(2) read with Section 274 Cr.P.C. for recording her statement. The respondent in her evidence, recorded by the learned trial Court, has filed her affidavit Ex.CW.1/A. Thereafter, she faced the crossexamination. During the course of the arguments, while relying upon the law laid by this Court in Gurtej Singh v. Balwinder Kaur,2013 5 RCR(Cri) 814, it was contended that the evidence of the respondent-wife could not have been recorded by way of affidavit as she was not a formal witness and thus, the application under Section 311 Cr.P.C. has been filed on the ground that her re-examination was necessary for just and effective decision of the case.

(3.) This application was contested by the petitioner-husband on the ground that the objection was raised at the time of crossexamination of the respondent-wife and it was specifically pointed out that her evidence cannot be recorded by way of affidavit in the proceedings under Section 125 Cr.P.C. It was pleaded that the application under section 311 Cr.P.C. was not maintainable. The respondent-wife had herself not deposed in the court and instead of it, she chose to tender her affidavit. Now, it does not lie in her mouth to say that she was competent and able to depose on oath in support of the contents of her petition. She cannot be allowed to fill up the lacuna in the case at the stage when the arguments have already been heard and the case is fixed for final order.