JATINDER KUMAR GABHA Vs. USHA GABHA

JUDGEMENT

(1.) THE petitioner-Jatinder Kumar Gabha seeks quashing of complaint filed under Section 125 of the Code of Criminal Procedure, copy annexure P1, filed by respondent No. 1 wife Smt. Usha Gabha on her behalf and on behalf of her two minor children respondent No. 2-Ms. Charu daughter of the petitioner and respondent No. 3-Master Nikhil son of the petitioner, under her guardianship and quashing of impugned orders annexures P2 and P4, proceedings subsequent thereto pending in the court of Judicial Magistrate 1st Class, Pathankot. The respondent No. 1 wife Smt. Usha Gabha was married with the petitioner on 24.4.1983 at Ludhiana. The marriage was duly consumated and two children were born out of the wed-lock who have been arrayed as respondent Nos. 2 and 3 and are represented through their guardian-mother respondent No. 1. The petitioner is alleged to have subjected his wife Smt. Usha Gabha to cruelty on the demand of dowry and he misbehaved with her, physically assaulted her and made her life miserable. The behaviour of the petitioner led the respondent No. 1 wife to leave the matrimonial house with her two minor children and to live with her mother and brothers at Pathankot but finding herself unable to sustain herself and her children from the meagre resources which she had from part time teaching job, she moved an application under Section 125 of the Code of Criminal Procedure in the court of Sub Divisional Judicial Magistrate, Pathankot and claimed a sum of Rs. 500/- as maintenance for herself and the same amount for each of the two minor children. She alleged that the respondent was employed and his monthly income was not less than Rs. 5,000/- per month. This application for maintenance came up for hearing before Sh. V. P. Soni, PCS, Judicial Magistrate 1st Class, Pathankot being criminal application No. 20/3 of 4.5.1994 and was decided vide judgment and order dated 24.1.1996, copy Annexure P-2. The petitioner-husband who was impleaded as respondent in the application under Section 125 Cr.P.C. did not appear in the court of Judicial Magistrate 1st Class, Pathankot to contest the application and allowed the same to proceed ex parte. By the judgment copy Annexure P-2, the learned Judicial Magistrate 1st Class, Pathankot, allowed the application for maintenance and granted maintenance at the rate of Rs. 400/- per month to respondent No. 1 wife Usha Gabha and a sum of Rs. 300/- per month for each of the two minor children-respondent Nos. 2 and 3 from the date of the application. The petitioner, it appears, did not provide for the maintenance allowed by the Judicial Magistrate 1st Class to her and her minor children and moved an application under Section 125(3) of the Code of Criminal Procedure against the petitioner husband in the court of Sub Divisional Judicial Magistrate, Pathankot Sh. V. P. Soni, copy Annexure P-3, on 20.12.1996 praying that the respondents be directed to pay a sum of Rs. 31,000/- as maintenance allowance and the recovery of the amount be effected by issuing conditional warrants of arrest of the respondent- husband/judgment debtor. A perusal of Annexure P-4 dated 22.1.1998 passed by Sub Divisional Judicial Magistrate, aforesaid shows that conditional warrants of arrest issued against the petitioner-husband were received un-executed when fresh conditional warrants of arrest were ordered to be issued. In the meantime a joint petition under Section 13-B of the Hindu Marriage Act was filed by the petitioner-husband and respondent No. 1 wife in the court of Additional District Judge, Ludhiana, in which the petitioner-husband and wife Usha made the following statement, copy Annexure P-6 :-

(2.) THE petitioner-Jatinder Kumar Gabha has prayed for the quashing of the application filed under Section 125 of the Code of Criminal Procedure and the impugned orders on the ground that the respondent-wife Smt. Usha Gabha has made a statement before the Matrimonial Court i.e. the court of Addl. District Judge, Ludhiana, about receiving in lumpsum amount of alimony as well as maintenance for herself and for her minor children and that the minor children were to remain in her custody.

(3.) I have heard the learned counsel for the petitioner and the learned counsel for the respondents and have carefully perused the impugned complaint and the orders and the record of the case.