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2011 Supreme(Pat) 151

PATNA HIGH COURT
Rakesh Kumar, J.
Baidhya Nath Chaudhary
Versus
State Of Bihar
Criminal Miscellaneous No. 23713 of 1998
Decided On : JANUARY 24, 2011

Headnote:Code of Criminal Procedure, 1973-Section 482 r/w Section 125-Husband-petitioner seeking quashing of the order directing him to pay maintenance allowance to wife-O.P No.2 failing which coercive steps was to be taken-Order has been challenged on the ground that once, on the basis of a compromise petition, the learned SDJM withdrew the distress warrant and the case was disposed of, he had become functus officio to pass any subsequent order and also that the Magistrate had no power to recall the order-Once the order u/s 125 (1) Cr. PC. is passed, the maintenance allowance can be realized in view of Section 125(3)-however, in special circumstances, the same can be cancelled u/s 125 (5) or Section 127 Cr.PC.-in the present case the maintenance order passed u/s 125(1) was neither stayed, nor cancelled and it was still operative and subsisting and as such, even after compromise, O.P no. 2 was entitled to approach the same court for taking steps for realization of maintenance allowance-in case there was way breach in view of provision contained in the Code of Criminal Procedure even after withdrawal of the distress warrant at a particular stage, the aggrieved opposite party was entitled to approach the Magistrate for issuance of process for realization of the maintenance allowance as per the order of the maintenance at any subsequent stage and the same cannot be considered as reviewing or recalling of the earlier order-bar imposed u/s 362 Cr. PC. is not applicable in such circumstances-present petition dismissed being devoid of any merit. (Paras 10 & 12)

       AIR 1977 SC 2432, (2001)1 SCC 169 Para 10, 1979 Cr. L.J. 198 Para 7-Referred to.

       

JUDGEMENT

RAKESH KUMAR, J.

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 ana, 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.Par




































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