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Jagan Nath Vs. Mst. Sarjoo - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1971CriLJ158
AppellantJagan Nath
RespondentMst. Sarjoo
Cases ReferredKaainath Panda v. Padambati Devi A.I.R.
Excerpt:
- .....passed by the learn, ed sessions judge, udhampur, up-holding the order dated 20.2.1969 of the chief judicial magistrate, udhampur, rejecting the application of the petitioner for cancellation of the order of maintenance paased against him under the provisions of 8. 438 of the criminal p.c.2. the facts relevant for the purpose of this application are :-in 1963 the respondent made an application under section 488 of the criminal p.c., for maintenance allowance in the court of the chief judicial magistrate, udhampur. on 28-8-1965 the parties arrived at a settlement on the basis of which the chief judicial magistrate ordered that maintenance at the rate of rs. 35/. per month be paid by the petitioner to the respondent. the petitioner complied with this order for a little over a year but.....
Judgment:
ORDER

Jaswant Singh, J.

1. This is an application to revise an order dated 7.11-1969 passed by the learn, ed Sessions Judge, Udhampur, up-holding the order dated 20.2.1969 of the Chief Judicial Magistrate, Udhampur, rejecting the application of the petitioner for cancellation of the order of maintenance paased against him under the provisions of 8. 438 of the Criminal P.C.

2. The facts relevant for the purpose of this application are :-

In 1963 the respondent made an application Under Section 488 of the Criminal P.C., for maintenance allowance in the Court of the Chief Judicial Magistrate, Udhampur. On 28-8-1965 the parties arrived at a settlement on the basis of which the Chief Judicial Magistrate ordered that maintenance at the rate of Rs. 35/. per month be paid by the petitioner to the respondent. The petitioner complied with this order for a little over a year but discontinued the payment thereafter. On 7.3-19.67 he made an application before the Magistrate praying that the order of maintenance of the respondent passed on 23-8-1965 be cancelled as the respondent was living in adultery. The application was resisted by the respondent asserting inter alia that she was leading a chaste life, that she was not living in adullery, and that there was no cogent ground for cancellation of the order of maintenance passed in her favour. The Chief Judicial Magistrate went into the allegations made by the petitioner and after holding an enquiry came to the conclusion that the petitioner had himself taken a second wife, that ' the respondent was leading a chaste life and that the daughter born to her was the result of physical union between the parties when the petitioner used to visit the respondent in her parents' house to pay the maintenance. The learned Chief Judicial Magistrate also held that the application was merely a subterfuge employed by the petitioner to get rid of the order of maintenance passed against him in 1965. With these findings the learned Chief Judicial Magistrate rejected the application. Aggrieved by this order, the petitioner went up in revision before the learned Sessions Judge, Udhampur, who dismissed the revision application holding that the petitioner bad married a second wife, that the respondent bad been at her patents house tot some years and that there was absolutely no legal evidence on the record to warrant the conclusion that, the respondent lived in adultery or that the child born to her was the result of adulterous intercourse with a stranger.

3. Mr. Mengi appearing on behalf of the petitioner has urged that since on the respondent's own admission that the child born to her was the result of physical union between her and the petitioner, the basis of the order of maintenance had been removed and it had become inoperative and unenforceable. He ha? in support of his submission referred me to a ruling of the Madras High court reported in A.I.R. 1980 Mad 515.

4 Mr. Sharma appearing on behalf of the respondent has on the other hand contended that mere birth of the child to the respondent as a result of physical union between her and the petitioner cannot have the effect of wiping out the order of the maintenance passed in favour of the respondent.

5. It is now wall settled that maintenance should not be discontinued unless there is Cogent proof that the wife has been living in adultery since the passing of the order of maintenance. 'Living in adultery' has now been consistently held to mean an outright adulterous conduct where the wife lives in a quasi permanent union with the man with whom she is committing adultery.

6. In the present case as has been concurrently found by the courts below such a con-duct has not at all been proved by the petitioner, and the facts and circumstances of the case show that the child born to the respondent was the result of cohabitation between the petitioner and the respondent when the former used to visit the latter at her parents house for the purpose of paying the maintenance allowance to her. There is no evidence on the record that the respondent ever left her parents' house and went over to reside with her husband in his house as a result of any reconciliation with him. On the other hand, the evidence shows that the petitioner has been visiting the respondent in her parents' house where she bag been continuously residing for some years. No act on the part of the respondent has been proved disentitling her to the maintenance awarded in her favour by the Magistrate. The circum. stances under which the order of maintenance once passed in favour of a wife can be cancelled are specifically set out in Clause (5) of Section 488, Criminal P.C. Aa none of the circum. stances mentioned in the aforesaid provision have been made out in the present case and mere temporary resumption of cohabitation between the husband and the wife without re. moral of the grounds for obtaining separate maintenance, cannot have the effect of putting an end to the order of maintenance, the learned Chief Judicial Magistrate and the learned Sessions Judge were perfectly justified in rejecting and dismissing the application of the petitioner for cancellation of the aforesaid order dated 23-8-1965. The decision of the Madras High Court in 8. Natesa Pillai v. Jayammal : AIR1960Mad515 cited by Mr. Mengi is clearly distinguishable and doea not help his client. In that case it was found that the wife went and lived with the husband.

7. I feel tempted at this stage to refer to the following passage in the judgment of the Division Bench of the Orissa High Court in Kaainath Panda v. Padambati Devi A.I.R. 1956 Orispa 199 which aptly apply to this case;

Section 488, Criminal P.C. is a piece of beneficent legislation meant for the benefit of abandoned wives and children with a view to prevent vagrancy. The abandoned wife is put to some expenditure and harraamentin applying to the Magistrate and obtaining an order for maintenance. It will not be proper to so construe that Section as to cast on her the onerous burden of again applying to the Magistrate for a fresh order of maintenance merely because after obtaining the first order she was persuaded to resume cohabitation with her husband and then finding it impossible to live together, she again separated.

8. For the foregoing reasons, I do not find any merit in this petition which is hereby dismissed.


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