BAIDHYA NATH CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner , who is husband of Opp.Party no.2 , has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 22.3.1997 passed in Maintenance Case No.8 of 1996 , whereby learned Sub Divisional Judicial Magistrate, (West) Muzaffarpur has allowed the petition filed on behalf of Opp.Party no.2 and directed the petitioner to pay maintenance allowance to Opp.Party no.2, failing which coercive steps would be taken for realization of due amount of maintenance allowance . THE petitioner has further prayed for quashing of order dated 11.9.1998 passed in Cr. Revision No.106 of 1997 by learned 1st Addl. Sessions Judge, Muzaffarpur, whereby the revision preferred by the petitioner was rejected.

(2.) IN the petition filed by the petitioner, fact of the case has not been stated in detail, rather in cryptic manner certain facts were stated. However, after going through the impugned orders, actual fact has come to fore. Opp.Party no.2 is married wife of the petitioner. However, subsequently, due to non-maintenance by the petitioner, a maintenance case was filed by Opp.Party no.2 under Section 125 of the Code of Criminal Procedure, which was numbered as Case No.25 of 1980. The said case was filed in the court of learned Chief Judicial Magistrate, Muzaffarpur, which was transferred to the learned Sub Divisional Judicial Magistrate (West), Muzaffarpur. Finally on 17.5.1983, the learned Magistrate directed the petitioner to make payment of maintenance @ Rs.300/- per month from the date of filing of the petition. Since the petitioner did not bother to maintain Opp.Party no.2 despite the order of the court, the Opp.Party no.2 was constrained to file a petition for realization of the maintenance amount from the petitioner. Thereafter, the petitioner started living with Opp.Party no.2 and in the meanwhile, total amount of Rs.5000/- was paid to Opp.Party no.2. During the said period, the petitioner also cohabited with Opp.Party no.2 and, as such, Opp.Party no.2 was blessed with a son during the said period. Subsequently, the petitioner again stopped visiting the house of Opp.Party no.2. IN the meanwhile, after the order of the maintenance passed under Section 125(1) of the Code of Criminal Procedure in favour of Opp.Party no.2, the petitioner approached this Court by way of filing a petition under Section 482 of the Code of Criminal Procedure vide Cr.Misc.No.3513 of 1985 , which stood dismissed. After dismissal of Cr.Misc.No.3513 of 1985 , the petitioner again persuaded Opp.Party no.2 for settling the dispute and, as such, on 15.12.1994 a compromise petition was filed , wherein it was indicated that both the parties had now started living together and, as such, there was no need to make payment of the maintenance allowance. Since the petitioner had stopped making payment of maintenance to Opp.Party no.2 prior to compromise on the prayer made by Opp.Party no.2 distress warrant was issued for the purposes of realization of the dues. On the basis of said compromise petition, learned Sub Divisional Judicial Magistrate passed an order for withdrawal of distress warrant and in view of petition filed by Opp.Party no.2, the case was disposed of. After the withdrawal of the distress warrant as well as disposal of the proceeding for realization of the arrear dues of the maintenance allowance, the petitioner again neglected Opp.Party no.2 and, as such, Opp.Party no.2 was again constrained to file a petition for issuance of distress warrant against the petitioner for realization of maintenance allowance. The petitioner also filed show cause on 16.10.1996 praying therein to dismiss the petition filed by Opp.Party no.2 on the ground that in view of order dated 15.12.1994, the original case had come to its natural death. However, the learned Sub Divisional Judicial Magistrate by its order dated 22.3.1997 allowed the petition filed by Opp.Party no.2 and directed the petitioner to make payment of maintenance allowance to Opp.Party no.2 after 15.12.1994, failing which coercive step was directed to be taken for realization of dues of maintenance allowance.

(3.) ON the sole ground that the impugned order was without jurisdiction, the petitioner had challenged the order before the revisional court and revisional court i.e. learned 1st Addl.Sessions Judge, Muzaffarpur by its order dated 11th September 1998 passed in Cr.Revision No.106 of 1997 /16 of 1997 had rejected the plea of the petitioner. Sri Neeraj KumarSanidh has again reiterated the same point and it was argued that on the ground of order being without jurisdiction, same is liable to be set aside.