Court:PATNA HIGH COURT
Bench: JUSTICE Abhiram Singh
BANSHI DAS Vs. JITNI DEBI On 18 May 1983
Section 125(1) and 125(3) — Compromise on application for maintenance — Wife to go to live with husband — Should husband neglect again to maintain her she would be entitled to Rs. 200/- p.m. as maintenance — Wife’s subsequent application for maintenance, alleging husband’s refusal to maintain her — Husband filing counter refuting the allegations — Court allowing fixed maintenance of Rs. 200/- p.m. to wife on perusal of affidavits of the parties — No evidence recorded — Order whether legal and in terms of Section 125(1) or 125(3) of Cr.P.C. ? (No) — Result — Revision allowed — Case remanded for decision after recording evidence.
This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’), for setting aside the order dated 6-1-1983 passed in Criminal Revision No. 103 of 1982 by the learned Sessions Judge, Dhanbad, confirming the order dated 16-6-1982 passed by Shri M.D. Mohan, Judicial Magistrate, Chas at Dhanbad, in M.P. Case No. 11 of 1981, granting monthly maintenance of a sum of Rs. 200 to be paid by the petitioner to the opposite-party.
2. The facts of the case giving rise to the present application in short, are that Jitni Debi (opposite-party) filed a case under Section 125 of the Code against Banshi Das, her husband (the petitioner) in the Court of S.D. J.M., Chas at Dhanbad for getting maintenance as the petitioner had neglected and refused to maintain her and her two children. The case was transferred to the court of Shri M.D. Mohan, Judicial Magistrate, 1st class, Chas at Dhanbad for disposal. Both the parties compromised the case and executed a bond before the court below to the effect that the opposite-party would remain with the petitioner as his wife and if she leaves the place of her husband at her own accord then she will not be entitled for any maintenance. It was further stipulated in the bond that if the petitioner again neglected and refuse to maintain the opposite-party then he would be liable to pay a sum of Rs. 200 to the opposite-party. The learned Magistrate accepted the compromise arrived at between the parties and directed the opposite party to go to the petitioner, her husband’s house and live like a devoted wife. The learned Magistrate also fixed the amount of maintenance by that order and also ordered that in case the applicant-opposite party would be compelled to come to court on being refused to be maintained by the petitioner then, in that event, the opposite party will be justified in claiming the monthly allowance. Subsequently on 7-4-1982, the opposite-party filed an application before the learned Magistrate that the petitioner had refused to maintain her and so the petitioner should be directed to pay a sum of Rs. 200 to her as maintenance. The petitioner also filed an application on 13-4-1982 stating therein that the opposite-party had left his place out of her own accord and also had taken some money from his house after assaulting his mother. He also stated in his petition that the opposite party was also contemplating to have another husband. The affidavits were sworn on behalf of both the parties to support the facts alleged by them in their respective applications. No evidence was adduced. The learned Magistrate after considering the applications and affidavits of the parties, passed an order on 16-6-1982 directing the petitioner to pay a monthly maintenance of Rs 200. Thereafter the petitioner filed Criminal Revision No. 102/82 in the court of the Sessions Judge Dhanbad, against the said order. The learned Sessions Judge also confirmed the order dated 16-6-1982 passed by the learned Magistrate.
3. Mr. M.K. Laik, learned counsel appearing on behalf of the petitioner, he submitted that the learned Magistrate acted without jurisdiction in passing the order dated 16-6-1982, in which the petitioner was directed to pay a sum of Rs. 200 per month to the opposite-party. He has further submitted that any order for allowing maintenance to the opposite-party must be an order under Sub-section (1) of Section 125 of the Code. The order dated 23-11-1981, in which the learned Magistrate accepted the compromise petition filed on behalf of both the parties, cannot be said to be an order under Sub-section (1) of Section 125 of the Code as there is no clear direction that the petitioner should pay a sum of Rs. 200 to the opposite-party. The order simply says that the opposite-party should go to the petitioner and live with him as a devoted wife and a conditional order was passed that if in future the petitioner would neglect or refuse to maintain the opposite-party then in that case the opposite-party would be entitled to claim maintenance of Rs. 200 per month. In the circumstances, the order dated 16-6-1982 also cannot be said to be an order under Sub-section (3) of Section 125 of the Code. Hence it has to be considered whether the order dated 23-11-1981 can be said to be an order under Sub-section (1) of Section 125 of the Code. Considering the facts and circumstances of the case, there appears substance in the contention raised on behalf of the petitioner that the order dated 23-11-1981 cannot be said to be an order under Sub-section (1) of Section 125 of the Code. There should have been clear order so far as the payment to be made by the petitioner was concerned as maintenance. The order appears to be only conditional and the consideration of the payment of the monthly allowance would also depend on the decision of the court to be arrived at in future after considering as to which of the parties had broken the terms of the compromise. Hence in any view of the matter, the order dated 23-11-1981 cannot be said to be an order under Sub-section (1) of Section 125 of the Code.
4. Learned counsel for the petitioner has also submitted that assuming for the moment that the order dated 16-6-1982 is an order under Sub-section (1) of Section 125 of the Code, then also it cannot be said to be a legal order as it is not based on legal evidence. He has further argued that when there is a reference of the word ‘upon proof in clause (1)(d) of Section 125 of the Code then it means that the proof must be based on some evidence. According to him the affidavits sworn before the learned Magistrate cannot be said to be legal evidence. The parties should have adduced proper evidence before the learned Magistrate. Only on examination of witnesses, the Court should have come to the conclusion as to which of the parties was at fault and whether it was a fit case in which the order for paying maintenance should be passed. There were no sufficient materials before the learned Magistrate to come to the conclusion as to which of the parties had broken the terms of the compromise. Learned counsel for the petitioner has also criticised the view of the learned Sessions Judge in paragraph 6 of his order that the opposite-party had simply filled an application before the learned Magistrate for enforcement of the terms of the bond and under the circumstances; further evidence was not required to be adduced. He has argued that in any case the learned Magistrate had to be satisfied as to which of the parties had broken the terms of the agreement and for that examination of witnesses was necessary. In the terms of the compromise both the parties had undertaken something and there was no possibility of coming to any conclusion unless legal evidence was adduced to prove the respective cases of the parties. Undoubtedly there is substance in the contention raised on behalf of the learned counsel appearing on behalf of the petitioner. The learned Magistrate should have examined witnesses to come to the conclusion as to which of the parties had broken the terms of the agreement and only on consideration of the proper evidence he should have passed an order for the maintenance, that is, the order under Sub-section (1) of Section 125 of the Code.
5. In view of the above discussions I find that there is merit in this application and it is accordingly allowed. The order dated 6-1-1982 passed by the learned Sessions Judge confirming the order dated 16-6-1983 passed by the learned Magistrate is hereby set aside and the case is remanded back to the learned Judicial Magistrate, 1st class, Chas at Dhanbad for a fresh decision according to law in the light of the observations made above.