Criminal Application No.1505 of 1995

31st January, 1996

Petitioner Counsel: Shri. H.D.DANGRE
Respondent Counsel: Shri. B.P.DHARMADHIKARI

Cases Cited:
AIR 1994 SC 853 [Para 6]

JUDGMENT

JUDGMENT : By this criminal application under Section 482 of the Criminal Procedure Code, the applicant challenges the order passed by the trial Court by which the trial Court has allowed the application of the non-applicant no.1 to adduce the evidence.

2. The undisputed facts are that the present applicant is the wife of non-applicant No.1 Anil who were married in the year 1984. It seems that there is one son out of this wedlock who is living with the non-applicant. Be that as it may, the relations between the applicant and her husband were strained and ultimately the applicant filed an application under Section 125 of the Criminal Procedure Code before the Judicial magistrate, First Class, Narkhed. A specific defence was raised in this by the husband. Apart from denying that he had meted out any ill-treatment to his wife, he specifically alleged that the present applicant was serving as a teacher in Kranti-Jyoti Savitribai Fuley Kanya Vidyalaya, Narkhed and was getting the salary of Rs.1200/- to 1400/- per month. He claimed that she was able to maintain herself and was not in the need of any maintenance from her husband. The parties went to the evidence. During the evidence also, the non-applicant submitted that the applicant was serving in Kranti-Jyoti Savitribai Fuley Kanya Vidyalaya at Narkhed as a teacher. However, he was not able to produce any evidence regarding the salary being drawn by the present applicant. The non-applicant also went to the extent of examining the Headmistress one Vijaya Aswal as a witness for him and her evidence was also relied upon by the non-applicant to show that the applicant was gainfully employed as a teacher. Be that as it may, on the basis of the evidence led before it, the Judicial Magistrate, First Class, Narkhed allowed the application and awarded the maintenance at the rate of Rs.500/- per month from the date of filing of application. After this order, a revision came to be filed at the instance of the husband but the revision came to be dismissed by the 4th Additional Sessions Judge, Nagpur who confirmed the order. Thus, the order of grant of maintenance became final. The parties report that there was no further challenge to the order.

3. The applicant thereafter started execution by way of an application which was registered as Misc. Criminal Application No. 55/93. In all there appear to be two recovery proceedings, one by the afore-mentioned Misc. Criminal Application No.55/93 and the other by Misc. Criminal Application No.29/94. The total arrears claimed in the first application are Rs.28,300/- while in the second one the claimed arrears are Rs.6350/-. These applications were stiffly opposed by the present non-applicant who gave separate replies to both the applications and contended in those replies that in fact the applicant was employed as an assistant teacher in Kranti-Jyoti Savitribai Fuley Kanya Vidyalaya, Narkhed and was drawing the salary and allowances as per provisions contained in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and that she had given a false evidence stating that she had no job. It was also suggested that even Vijaya Aswal who was examined in that case and who was serving as a headmistress of the said School had also given false evidence. it was suggested in paragraph 9 that an inspection was carried out by Education Extension Officer, Panchayat Samiti, Narkhed and a report was submitted on 3-2-1992 and in that report he had suggested that he had given a statement of teachers employed in the said school wherein the name of the present applicant appeared as a teacher at serial No.8. It was also mentioned in t he said statement that her basic salary was Rs.1200/- per month. It was, therefore, contended that she was actually drawing the emoluments of Rs.2500/- per month and on that count she had given false evidence. It was also suggested that the documents like the report the inspection note, etc. were maintained by the schools in the regular course of business and it was, therefore, prayed that the court in its inherent jurisdiction should call upon the school authorities as well as the panchayat Samiti and the Education Officer to produce all the documents in connection with the employment of the applicant. It was, therefore, stated that the order obtained by the wife from the Judicial Magistrate, First Class, Narkhed was as a result of fraud played upon the Court and was a nullity. A declaration was sought in the prayer that the orders passed by the Judicial Magistrate First Class as well as that of the revisional court should be declared as a nullity and that the Court should proceed against the applicant for giving false evidence. The replies are almost common in both the Misc. Criminal Cases.

4. Thereafter an application came to be filed on 27-10-1994 whereby it was suggested that in the reply the non-applicant/husband had made allegations that the present applicant had obtained the order of grant of maintenance by playing fraud on the Hon'ble Court and in view of these allegations of fraud, the opportunity was liable to be given to the husband to adduce evidence and bring the truth before this Court. This application is signed by the non-applicant and the prayer is that the permission should be granted to adduce the evidence in order to substantiate his allegations of fraud in the reply. The application was replied to. Identical application was made even in the other Misc. Criminal Case which was similarly replied. The learned trial Court has allowed this application in which it has permitted the present non-applicant to adduce the evidence to show that the present applicant was a teacher and was getting the salary of Rs.2500/-. It is this order which is challenged in the present case.

5. Shri. H.D. Dangre, the learned Counsel for the applicant, contended that there was absolutely no scope for making such an order as in fact the order had become final in a revision. The only scope, according to Shri Dangre, was to vary the amount of maintenance for which a separate application could have been filed by husband under Section 127 of the Criminal Procedure Code showing that the circumstances under which the maintenance was granted had undergone a change and as such the rate of the maintenance could be varied. Shri Dangre points out that what is being attempted by this application is to efface away the order of maintenance altogether. He points out that in the original proceeding under Section 125 these precise contentions were raised by the husband and the husband had alleged therein that the wife was serving as a teacher and was earning a salary and as such, was not in need of the maintenance. He points out that the courts below have specifically held on the basis of evidence led that the wife was not gainfully employed and that the contentions raised by the husband were incorrect and the husband was not able to prove that the wife was gainfully employed. According to the learned Counsel, therefore, the present application is nothing but an effort to open a closed chapter. He submits that under the scope of Section 125(3) such order is not possible and in fact the court has passed an order allowing husband to lead evidence, without there being any power or propriety for the same.

6. Shri B.P. Dharmadhikari, the learned counsel for the non-applicant, however, relied heavily on Section 44 of the Indian Evidence Act and argued that the wife/applicant in this case, though was aware that she was gainfully employed, deliberately suppressed her income by way of salary as a teacher from the court and thus had played fraud and as such the order granting maintenance was liable to be set aside on the ground of fraud and the new evidence could, therefore, be pressed into service to show that the original order was fraudently obtained. He, therefore, supported the order permitting the husband to introduce new evidence which would go to show that the wife had played fraud with the court. He further relied on the reported ruling of the Supreme Court in S.P.Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and Others (AIR 1994 SC 853). It seems that the learned trial Court has relied on this ruling only and has come to the conclusion that it was possible for a party to challenge and proceedings on the ground of fraud having been played on the court and the courts could undo it under Section 44 of the Indian Evidence Act.

7. The learned trial court has wholly relied on paragraphs 1 and 7 of the ruling. The Court has held that the party has come with the specific case of fraud having been played by the wife and, therefore, in the interests of justice the opportunity was liable to be given to adduce the evidence on this point. The said ruling would be dealt with in the later part of this judgment.

8. However, at the outset, it must be stated that the order of the trial Court is a completely confused order. The trial Court has not indicated as to what it is going to do after allowing the parties to lead the evidence. The trial Court has not even bothered to decide as to whether it had power to set aside the original order. In that the trial Court has completely ignored the scope of the provisions of Section 125(3) as also Section 127 of the Criminal Procedure Code. The trial Court should have remembered that these were the proceedings under Section 125(3) for the recovery of the arrears. The rights of the parties had already been crystallised after a full trial and after the evidence was led before the trial Court. Section 125(3) provides only a modality to recover the arrears and the proceedings before the Court were not the original proceedings but the miscellaneous proceedings wherein the maintenance amount was sought to be recovered. Once the original order was confirmed by the revisional court, there was no question of reopening that order muchless on the grounds canvassed by the husband. This was certainly not an application at the instance of the husband wherein the husband had sought the alteration of the amount of the maintenance as contemplated in Section 127 but by this application what was being attempted was to get the original application under Section 125 dismissed. This certainly was not possible once that application was gone into by the Magistrate and once the Magistrate had allowed the application after listening to the evidence led before him. Not only this but the order of the Magistrate was also confirmed by the Additional Sessions Judge before whom a revision was preferred by the husband. On this count alone, the evidence could not have been allowed to be led by the husband to wipe out the order granting maintenance. In this behalf, the record shows that a civil suit was also filed by the husband to get the order of maintenance cancelled and the same was withdrawn.

9. Again it cannot be ignored that the very plea on the basis of which the said order was being sought to be nullified was already raised before the Magistrate as well as before the revisional Court. What is newly being sought to be canvassed is in fact based on the "new evidence" found by the applicant. Now if the husband had failed to adduce the evidence which was available, at the proper time, merely because subsequently he comes into possession of certain other evidence, that would not by itself give him a right to get the original order set aside muchless on the ground of fraud. It cannot be ignored that the judgment granting maintenance had already attained finality and could not be demolished on the basis of some new evidence. There is also a confirming revisional judgment in the field and in proceedings under Section 125(3) a Magistrate could not negate that also along with the original judgment granting maintenance.

10. In the original proceeding under Section 125, the husband had in fact not only averred the gainful employment on the part of the wife but had also tried to support his plea by leading evidence in that behalf. It is quite one thing that he did not succeed. The fact that the husband did not lead the necessary evidence and came into the possession of it later on would not by itself make the plea of the wife a fraudulent plea or on that count the wife could not be held to have played a fraud against the court by taking recourse to suppressio veri. In the allegations of fraud, what is being contended by the husband is that though the wife knew that she was gainfully employed, yet she filed the proceedings under Section 125 of the Criminal Procedure Code. In the original proceedings the wife had specifically denied that she was gainfully employed and thus was able to support herself. In that there was no element of deceit or cheating against the husband or the court, which is an essential element of fraud. There was no suppression on the part of wife either. Again even if the wife was gainfully employed, that would not disentitle her from initiating an action under Section 125. She can still convince the Court that even after the employment she was unable to maintain herself. Therefore, even assuming that the wife knew that she was gainfully employed that would not come in her way of initiating an action under Section 125.

11. In the reported case, cited supra, it is seen that the party who had filed a suit for partition had completely disentitled himself by executing a release-deed and thus, the party was aware of the fact that he was not in any way entitled to the relief claimed in the suit filed by him. Such is not the situation in the present case. Merely because the wife was employed, presuming that she was so employed, it could not be said that, that by itself would disentitle her from lodging the claim as was the case in the case of S.P.C. Naidu (cited supra). Again the issue as to whether the wife was so gainfully employed or not was fully tried and it was only because the husband claims to have come into possession of some more evidence that the husband wanted an opportunity to lead the evidence and ultimately to get the maintenance order cancelled. Such cannot be an import of the fraud. The observations quoted by the trial Court are completely out of context. This is not a case where the principle of finality of litigation is being pressed to an absurdity so that it becomes an engine or fraud in the hands of dishonest litigant. No dishonesty or deceit could be attributed to the wife in this case so as to attract the provisions of Section 44 of the Evidence Act. Here is a helpless woman who has been forsaken by her husband who refused to maintain her. Even assuming that she was employed, it cannot be presumed that she was getting salary from that employment and indeed that is the finding of the Courts below that though she admitted that she had the said employment and she was teaching, she was not getting any salary as the school was a non-grant school. This plea of hers was buttressed by the evidence of Headmistress whose evidence was led before the Courts below. Therefore, there was no question of anything being suppressed by the applicant in this case. Apart from that, the fact that the order passed by the Magistrate was challenged in a revision and was confirmed would again be a distinguishing factor. It is only when the original order is being sought to be executed that the application came to be made for leading the evidence to achieve the objective of getting the original order granting the maintenance wiped out. It will have to be observed that the principle of fraud stated by the Apex Court in the decision cited supra emerges from the facts which are quite different from the facts in the present case. Under such circumstances, that case cannot help the husband.

12. The order passed for permitting the party to lead evidence is in fact a redundant order which would serve no purpose. If at all the husband wants to get the order varied, he can file an application under section 127 of the Criminal Procedure code. However, in the proceedings of the applicant/wife under Section 125(3) there is no scope for permitting the husband to lead such evidence so as to get the original order granting the maintenance cancelled. In that view of the matter, this Criminal Application will have to be allowed as the order passed by the learned Magistrate amounts to an abuse of process of court.

13. In the result, the Criminal Application is allowed and the impugned order is set aside. The Magistrate shall proceed with the execution proceedings already started by the applicant.

Application allowed.