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1996 Supreme(Ori) 222
IN THE HIGH COURT OF ORISSA
Dipak Misra, J.
ARUN KUMAR SWAIN - APPELLANT
Versus
SUDESHNA SWAIN - RESPONDENT
Criminal Miscellaneous Case No. 101 of 1989
Decided On : 16-12-1996
S. Parida, for the Appellant; Sangram Kishore Nayak, for the Respondent
The Court has a duty to prevent vagrancy and to make provision for helpless wife, deserted children and destitute parents. The quality of this provision is to provide speedy and efficacious remedy to the wife who is not expected to lead the life of a church mouse. Any attempt by the resisting party to annihilate the purpose of this summary proceeding has to be nipped in the bud.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 125 - MAINTENANCE - HUSBAND'S OBLIGATION - WIFE'S RIGHT TO MAINTENANCE - COURT'S DUTY TO PREVENT VAGRANCY AND PROVIDE SPEEDY REMEDY - DILATORY TACTICS BY HUSBAND NOT TO BE TOLERATED - INHERENT JURISDICTION OF HIGH COURT TO INTERFERE - LIMITED SCOPE.
Fact of the Case:
Husband challenged the order of the lower courts granting maintenance to his wife under Section 125 of the Code of Criminal Procedure (CrPC). The husband claimed that he was not given an opportunity to present his case and that the order was passed ex parte. He also argued that he had a valid defense to the wife's claim for maintenance.
Finding of the Court:
The High Court held that the husband's conduct was recalcitrant and that he had deliberately delayed the proceedings by taking recourse to procedural subterfuges. The Court found that the husband had failed to provide any cogent reasons for invoking the inherent jurisdiction of the Court to interfere with the orders of the lower courts.
Issues: 1. Whether the husband was denied an opportunity to present his case in the maintenance proceedings? 2. Whether the husband had a valid defense to the wife's claim for maintenance? 3. Whether the High Court could interfere with the orders of the lower courts under its inherent jurisdiction.
Ratio Decidendi: 1. The Court held that the husband had been given ample opportunity to present his case, but he had failed to do so due to his own laches. 2. The Court found that the husband had not provided any evidence to support his defense to the wife's claim for maintenance. 3. The Court held that the inherent jurisdiction of the High Court to interfere with the orders of the lower courts is limited and can only be exercised in exceptional circumstances. In the present case, the Court found that there were no exceptional circumstances that warranted its interference.
Final Decision: The High Court dismissed the husband's petition and upheld the orders of the lower courts granting maintenance to the wife.
JUDGMENT :
Dipak Misra, J. - In the present application challenge is to the judgment passed in Criminal Revision No.6 of 1988 by the learned Sessions Judge, Ganjam, Berhampur whereby the revisional Court affirmed the order passed by the learned S.D.J.M., Bhanjanngar in Misc. Case No.5 of 1986 allowing the application preferred u/s 125 of the Code of Criminal Procedure (in short the Code') invoking the inherent jurisdiction of this Court.
2. The facts giving rise to the present application are that opposite party instituted a proceeding u/s 125 of the Code claiming maintenance at the rate of Rs.500/ - per month from the petitioner alleging that her marriage was solemnised in the month of Falguna, 1979 according to Hindu Customs and tradition, but after five months of the marriage the petitioner had deserted her. The petitioner entered appearance, filed his objection resisting the claim of the wife and denied his liability to pay the maintenance on the ground that she had voluntarily deserted him, and she has sufficient means to maintain herself. The petitioner remained absent and was set ex parte on 25.9.87. The case stood adjourned to 15.10.87, then to 23.10.87, and thereafter to 26.10.87 when the opposite party wife adduced evidence. On the next date the impugned order granting maintenance at the rate of Rs.250/- per month was passed. On 27.11.87 the petitioner filed an application for restoration of the case and for grant of an opportunity to adduce evidence. However, he allowed the said application to be dismissed for default on 23.11.87. Thereafter he preferred criminal revision before the learned Sessions Judge, as indicated before, challenging the order passed by the learned S.D.J.M., Bhanjanagar granting maintenance in favour of the wife-opposite party. Before the learned Sessions Judge a singular contention was raised that the order setting him ex parte and adjudicating the lis without his presence was unjustified and he was entitled to another opportunity to put forth his version. The said submission did not find favour with the revisional Court and accordingly the revision was dismissed.
3. Mr. Paiida, learned counsel for the petitioner has assailed the aforesaid orders by contending that on the date fixed, due to unforeseen circumstances and for no laches of his own, the husband-petitioner could not participate in the proceeding and, therefore, under compelling circumstances, he has to suffer the impugned order. He has canvassed that in the peculiar facts and circumstances an opportunity should be granted to the petitioner so that he can adduce evidence and appropriately resist the claim of the opposite party herein. Inspite of notice opposite party has not entered appearance. This Court has appointed Mr. Sangram Kishore Nayak as Amicus Curiae. The learned Amicus Curiae has supported the orders passed by the Courts below. He has submitted that the petitioner has conducted himself in an extremely recalcitrant manner and does not deserve indulgence of this Court in an application where inherent jurisdiction is sought to be invoked.
4. The petitioner after his unsuccessful journey to the Court of Session, has approached this Court u/s 482 of the Code. True it is, a proceeding u/s 482 before this Court is maintainable though a person has availed the remedy of revision u/s 399 of the Code. But there is certain distinction between the revisional jurisdiction and the inherent jurisdiction. This Court in the case of Basudev Bhoi Vs. Bipadabhanjan Puhan and Another, has held as under:-
Thus, it becomes crystal clear that there is a fine but real distinction between the revisional jurisdiction and inherent power. In fact, the apex Court in the case of Ganesh Narayan Hegde (supra) has carved out a synthesis by taking note of section 399 of the Code and the concept of inherent powers. It may be stated here that the power u/s 482 was directly in issue in the case of Ganesh Narayan Hegde. Taking into consideration the distinctive view
