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Diwakar Sharma Vs. Smt. Gauri Devi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ2071
AppellantDiwakar Sharma
RespondentSmt. Gauri Devi
Excerpt:
- .....him without sufficient cause, and that he desired that she should live with him. he denied the wife's allegation that he was a rich man and the owner of such property.4. on november 9, 1976 the parties appeared before the learned judicial magistrate. he recorded their statements. then on the same day, without anything more, he made an order directing the husband to pay rs. 150/- per month as maintenance to the wife with effect from july 1, 76 with costs in the sum of rs. 500/-. he also directed the husband to deposit rs. 5.000/-in the name of the wife as proof of his genuine desire to have the wife live with him.5. after hearing learned counsel for the husband and perusing the record. i am of opinion that the order of the learned judicial magistrate cannot be sustained. the procedure.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. This is a husband's revision petition directed against the order of the learned Judicial Magistrate First Class, Rampur Bushahr ordering him to pay a monthly allowance of Rs. 150/- by way of maintenance to the respondent wife and to deposit a sum of Rs. 5.000/- in her name.

2. Notice of the revision petition has been served on the wife intimating that February 23, 1977 has been fixed for the hearing of the case. No one appears on her behalf nor does she appear in person.

3. It appears that on July 7, 1976 the wife filed an application Under Section 125 of the Criminal P. C. alleging that she was the lawfully wedded wife of the petitioner, that she was compelled to leave his consortium because of mal-treatment, that he had neglected her and the children, that one daughter remained unmarried, and that therefore an order should be made directing the husband to pay Rs. 150/- per month as maintenance to her, the same sum to the daughter and certain further amounts towards the cost of education and marriage of the other children. It was also alleged that the husband was a rich man and the owner of considerable landed property. The petition was resisted by the husband. He denied that he had ill- treated the wife, and pleaded that she had kept away from him without sufficient cause, and that he desired that she should live with him. He denied the wife's allegation that he was a rich man and the owner of such property.

4. On November 9, 1976 the parties appeared before the learned Judicial Magistrate. He recorded their statements. Then on the same day, without anything more, he made an order directing the husband to pay Rs. 150/- per month as maintenance to the wife with effect from July 1, 76 with costs in the sum of Rs. 500/-. He also directed the husband to deposit Rs. 5.000/-in the name of the wife as proof of his genuine desire to have the wife live with him.

5. After hearing learned Counsel for the husband and perusing the record. I am of opinion that the order of the learned Judicial Magistrate cannot be sustained. The procedure adopted by the learned Judicial Magistrate betrays a sense of impatience. He has disposed of the case without giving an opportunity to the parties to lead evidence in support of their respective cases. The order-sheet discloses that shortly after the application Under Section 125 was presented by the wife he made an order dated September 7, 1976 directing issue of notice to the husband calling on him to file a reply and also documents on which the reply was founded. No date was fixed for the leading of evidence by the parties. It was incumbent upon the learned Judicial Magistrate to give such opportunity to the parties. The learned Judicial Magistrate has further fallen into the error of treating the pleadings contained in the wife's application as a statement on oath. This is so particularly in respect of the allegation relating to the financial status of the husband. There is no evidence on the record in proof of the allegation regarding his financial standing. It is on the basis of that allegation that he has made the impugned order. It is an allegation and nothing more. Consequently, the order of the learned Judicial Magistrate is contrary to law and must be set aside.

6. The revision petition is allowed, the order dated November 9, 1976 made by the learned Judicial Magistrate is set aside and the case is remanded to the learned Judicial Magistrate for trial and disposal in accordance with law.


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