Laxmi Bai Patel v. Shyam Kumar Patel, (SC) BS143192
SUPREME COURT OF INDIA

Before:- D.P. Mohapatra and Brijesh Kumar, JJ.

Criminal Appeal No. 313 of 2002 (Arising out of SLP Crl. No.2825 of 2001) D/d. 28.2.2002.

Laxmi Bai Patel - Appellant

Versus

Shyam Kumar Patel - Respondent

Criminal Procedure Code, 1973, Section 125(4) - Maintenance - Denial - Wife stating that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations - Held, that such statements would not be sufficient to deny the maintenance to the wife by her husband.

[Para 6]

Cases Referred :-

Dharampal v. Ramshri (Smt.) JT 1993(1) SC 61.

Deepti alias Arati Rai v. Akhil Rai, 1995(3) All India Criminal Law Reporter 714 (SC).

Krishnan v. Krishnaveni, 1997(1) All India Criminal Law Reporter 624 (SC).

ORDER

Leave granted.

2. The appellant herein is the wife of the respondent. She has challenged the order dated 2.8.2000 of the High Court of Madhya Pradesh in miscellaneous criminal case No. 2472 of 1999. In the said order, the High Court in exercise of power under Section 482 of the Criminal Procedure Code (for short Criminal Procedure Code) quashed the order passed by the learned judicial magistrate first class, Jabalpur under Section 125 Criminal Procedure Code, 1973 granting Rs. 250/- per month as maintenance for the wife which was confirmed by the learned 4th upper additional sessions judge, Jabalpur. From the discussions in the impugned order, it appears that the High Court interfered with the concurrent orders of the Courts below mainly on two grounds; that the wife has left the metrimonial home voluntarily; and that she admitted that she was earning Rs. 50/- per day by agricultural operation. The High Court also observed that in her statement she accepted the position that her father-in-law owned no agricultural land and that her husband, who was wandering aimlessly, had no source of income.

3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482 Criminal Procedure Code, 1973 by the High Court in the facts and circumstances of the case. In a case where the sessions Court exercising revisional power under Section 397 (3) Criminal Procedure Code, 1973 has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well settled that in such a case power under Section 482 Criminal Procedure Code, 1973 can be exercised by the High Court in rare cases and in exceptional circumstances where the Court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the Court and will result in failure of justice. The Court in the case of Dharampal & Ors. v. Ramshri (Smt.) & Ors., [JT 1993(1) SC 61], held :

4. In the case of Deepti alias Arati Rai v. Akhil Rai & Ors., (1995) [5 SCC 75], a similar view was taken by this Court and it was observed :

5. In the case of Krishnan & Anr. v. Krishnaveni & Anr. [JT 1997 (1) SC 657], a three judge bench of this Court held that the inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code and that the object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of sessions so as to prevent unnecessary delay and multiplicity of proceedings. This Court made the following observations in paragraph 10 of the judgment :

6. Therefore, the question that arises for consideration is whether on the facts and circumstances it can be said that the case made out by the petitioner before the High Court was an exceptional one in which allowing the order passed by the learned magistrate, which was confirmed by the learned 4th additional sessions judge in revision to stand, would result in abuse of the process of the Court and lead to failure of justice. To put it differently, does the statements made by the wife that she had left the matrimonial home voluntarily and that she was earning Rs. 50/- per day by agricultural operations, disentitle her to receive maintenance from her husband ? It is our considered view that such statements without anything more would not be sufficient to deny maintenance to the wife from her husband. It is to be kept in mind that it is the responsibility of the husband to maintain his wife and wife has the right to claim maintenance so long as she stays away from the matrimonial home under compelling circumstances. The wife's right to claim maintenance under Section 125 Criminal Procedure Code, 1973 can be denied only in the circumstances provided under Sub-section (4) of the said Section. On the facts and circumstances of the case and found by the Courts below the said Sub-section is not attracted. Therefore, the High Court was clearly in error on upsetting the order passed by the learned judicial magistrate first class granting maintenance @ Rs. 250/- per month to the wife which was confirmed in revision by the 4th additional sessions judge. In the result, the appeal is allowed, the order dated 2.8.2000 of the High Court in miscellaneous criminal case No. 2472 of 1999 is set aside and the order dated 27.1.1998 passed by the learned judicial magistrate first class, Jabalpur in misc. criminal case No. 188 of 1997 which was confirmed by the order dated 19.2.1999 of the 4th upper additional sessions judge, Jabalpur in criminal revision No. 42 of 1998 is restored.

Appeal allowed.