HARISH CHAND Vs. BAIKUNTHI DEVI

JUDGEMENT

(1.) This revision petition has been preferred by the petitioner husband against the impugned order dated 23-3-1996 passed by the Judicial Magistrate. First Class No.1, Bharatpur in Criminal Case No. 46/1987, where by the Trial Court had directed the award of maintenance to the respondent-wife Smt. Baikunthi Devi Rs. 400/- per month and sum of Rs. 400/- per month for the welfare and upkeep of minor daughter Ms. Mohan Devi-respondent No.2 w.e.f. 18-3-1987 i.e., the date when the first application for award of maintenance was moved by the respondents before the Trial Court. The above order of the Trial Court was confirmed in appeal preferred before the learned District Judge. Bharatpur and the said Appellate Court vide its order dated 10-6-1997 confirmed the impugned order with a specific direction that in case the daughter-Mohan Devi is willing to stay with the mother-respondent No.1 or with the father-petitioner, the entire responsibility for the maintenance, upkeep and welfare of the minor daughter shall be of the father i.e., the petitioner. During the pendency of the first application dated 18-3-1987, the petition for dissolution of marriage by mutual consent under Section 13-B read with Section 25-B of the Hindu Marriage Act, 1958 was moved by the parties before the learned District Judge. Bharatpur which is still pending adjudication.

(2.) During the course of hearing it has been contended by the learned Counsel for the respondents that the said petition did not have the express and authorised consent of the respondent-wife and hence the petitioner was not competent to have presented the said application before the Trial Court without obtaining the prior consent of the respondent-wife and hence dissolution of marriage by a decree of divorce by mutual consent is not permissible. It has further been contended that the said petition was perpetrated by fraud and misrepresentation since the wife was not a consenting party to the said petition and therefore, the wife had moved an application before the Trial Court in this regard which is pending before the competent Court and as such the matter is sub-judice.

(3.) It has further been contended by the learned Counsel for respondents that during pendency of the earlier application for award of maintenance a 2nd application was moved for award of maintenance on behalf of respondents under Section 125. Cr. P.C. was presented before the Trial Court on 23-2-1994. In the said application the wife claimed maintenance Rs. 500/- per month for herself and Rs. 500/- per month for her daughter. The Trial Court finally decided the said application by the impugned-order dated 23-3-1996 whereby the petitioner-husband was directed to pay a sum of Rs. 400/- per month for maintenance of the wife and Rs. 400/- per; month for maintenance upkeep and welfare of the minor daughter-respondent No.2 payable w.e.f, 18-3-1987 i.e., the date when the first application for award of maintenance was moved by the respondents before the said Court.