PAVITTAR SINGH Vs. BHUPINDER KAUR

JUDGEMENT

(1.) Criminal Misc. No.4262-M of 1987 and Criminal Misc. No.5514-M of 1987 shall stand disposed of by this common order. The matter in controversy arose like this :- Pavittar Singh is married to Bhupinder Kaur. They are the respective petitioners in these two cases. Bhupinder Kaur, for herself and for her minor daughter Harkirat Kaur, filed a claim for maintenance against Pavittar Singh under S.125 of the Code of Criminal Procedure (for short the 'Code') before the Judicial Magistrate Ist Class, Malerkotla. The application was resisted, but during the course thereof a settlement came about between the parties. As a result thereof, the application was disposed of as dismissed. The order is to the following effect: -

(2.) The parties filed two cross petitions before the Court of Session. The Additional Sessions Judge, Sangrur, dismissed both of them. The claim of the wife for enhancement was rejected despite the finding recorded by the learned Magistrate that the husband was owning and possessing 70 Kanals of Chahi land in district Kurukshetra, which was suggestive of the fact that he had a sizable income enabling him to pay maintenance even at a more rate. The plea of the husband that the resumed trial was void ab initio for it violated the provisions of S.362 of the Code; did not cut any ice with the learned Additional Sessions Judge. Now, to press their respective claims in that regard, the parties have filed these two respective petitions.

(3.) The primary question is whether the learned Magistrate, with or without the consent of parties, had the jurisdiction to resume trial. It is totally incidental that the parties herein did give express consent for the resumption of trial waiving all objections in that regard. If the learned Magistrate had no jurisdiction to resume trial, consent of parties could not have conferred that jurisdiction. But if the learned Magistrate had the power to resume trial, then obviously consent of both parties was not necessary. Trial could be resumed even at the askance of one of them if there was justification for the purpose.