Criminal Application No. 247 of 1998

16th October, 2001

Petitioner Counsel: G. B. LOHIYA, R. S. AGRAWAL
Respondent Counsel: A. B. CHOUDHARI (for No.1), D. B. YENGAL

Cases Cited:
Rajan Kumar Machananda v. State of Karnataka, 1990 (Supp) SCC 132 [Para 3,8]
Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437 [Para 4,8]
Dharampal v. Ramshri (Smt.), (1993) 1 SCC 435 [Para 5,8]
Ganesh Narayan Hedge v. S. Bangarappa, (1995) 4 SCC 41 [Para 6,11]
Deepti alias Arati Rai v. Akhil Rai, (1995) 5 SCC 751 [Para 7,8]
Krishnan v. Krishnadevi, (1997) 4 SCC 241 [Para 8,12,15]
V. C. Shukla v. State through CBI, 1980 Supp SCC 92 [Para 8]
Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 [Para 8]
Rajathi v. C. Ganesan, (1999) 6 SCC 326 [Para 9]
Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 [Para 10]
Jitender Kumar Jain v. State of Delhi, (1998) 8 SCC 770 [Para 11]
State of Haryana v. Chander Mohan, 2001 Cri LJ 2105 (Punj and Har) [Para 12]
Royal Consultants Pvt. Ltd. v. Chief Enforcement Officer, 2001 Cri LJ 2464 (Madras) [Para 13]
Mary Angel v. State of T.N., (1999) 5 SCC 209 [Para 14]
Udaivir Singh v. Smt. Vinod Kumari, 1985 Cri LJ 1923 (All) [Para 17]
Chagan Lal Devman v. State of Maharashtra, (1990) 1 DMC 533 (Bombay) (Foll) [Para 18]
Khem Chand v. State, (1990) 1 DMC 38 (All) [Para 19]
Ravindra Singh v. Kapsi Bai, (1991) 2 DMC 422 (Madh Pra) [Para 20]
Baishnab Charan Jena v. Ritarani Jena, 1993 Cri LJ 238 (Orissa) [Para 21]
Chandrakant Gangaram Gawde v. Sulochana Chandrakant Gawde, (1996) 2 Mah LJ 341 [Para 22]
Narnath Thazhakuniyil Sandha v. Kottayat, Thazhakunlyll Narayanan, 1999 Cri LJ 1663 (Kerala) (Foil) [Para 23]

JUDGMENT

JUDGMENT :- The applicant had filed proceedings for maintenance under Section 125 Cr. P.C. The said proceedings were dismissed by the Judicial Magistrate, First Class, Yavatmal vide judgment dated 31-3-1993. The applicant had filed revision against the said order and the revision was also dismissed vide Judgment dated 28-11-1997 by the Sessions Judge, Yavatmal. The applicant has, therefore, approached this Court under Section 482 Cr. P.C. The matter was admitted without notice to the respondent No.1 husband. Therefore, learned Advocate for respondent No.1 urged before me that application under Section 482 Cr.P.C. cannot be entertained in view of bar under Section 397 (3) Cr. P.C. In support of his submission, learned Advocate for respondent No.1 placed reliance on number of rulings to which I shall refer at a little later stage.

2. Learned Advocate for the applicant urged before me that Jurisdiction under Section 482, Cr.P.C. is not totally barred and that in appropriate cases, this Court can exercise Jurisdiction under Section 482, Cr.P.C. inspite of there being bar under Section 397(3), Cr.P.C. He has also placed reliance on a number of rulings in support of his submissions. I shall, therefore, now refer to the rulings upon which reliance has been placed by the learned Advocate for the parties. To start with, I shall first refer to the rulings on which reliance has been placed by the learned Advocate for respondent No.1.

3. Learned Advocate for respondent No.1 has relied upon Rajan Kumar Machananda v. State of Karnataka, 1990 (Supp) SCC 132 in which it has been laid down by the Apex Court that where a revision petition is dismissed by the Sessions Court, a second revision would not lie to the High Court and merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome, because if that was to be permitted, every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482, Cr.P.C.

4. In Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee, (1990) 2 SCC 437 the Apex Court has laid down as under :

"The inherent power of the High Court under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such powers are as much controlled by principle and precedent as are its express powers by statute. It cannot be exercised to do something which is expressly barred under the Code. If a matter is covered by an express letter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction. Therefore, it cannot be invoked to over-ride bar of review under Section 362, if there had been changes in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at a different conclusion is in effect a review."

5. In Dharmpal v. Ramshri (Smt.), (1993) 1 SCC 435, the Apex Court has laid down that second revision application after dismissal of the first by the Sessions Court cannot be entertained by the High Court in the exercise of its inherent power under Section 482, Cr.P.C. It has been pointed out that inherent power under Section 482, Cr.P.C. cannot be utilised for exercising powers which are expressly barred by the Code.

6. In Ganesh Narayan Hegde v. S. Bangarappa, (1995) 4 SCC 41 upon which reliance has been placed by the learned Advocates for both the parties, it has been laid down that while it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. It has been further pointed out that while exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter and the High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges.

7. In Deepti alias Arati Rai v. Akhil Rai, (1995) 5 SCC 751 the Apex Court has laid down that second revision after dismissal of first by the Sessions Court, is not maintainable and inherent power cannot be utilised for exercising powers expressly barred by the Code.

8. In Krishnan v, Krishnadevi, (1997) 4 SCC 241 after examining the scope of various provisions including under Sections 397(3), 401 and 483, Cr.P.C. and after considering earlier judgments including Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551; V. C. Shukla v. State through CBI, 1980 Supp SCC 92: Dharampal v. Ramshri, (1993) 1 SCC 435; Rajan Kumar Machananda v. State of Karnataka, 1990 (Supp) SCC 132: Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437 ; and Deepti v. Akhil Rai, (1995) 5 SCC 751, it has been laid down that though second revision before the High Court under sub-section (1) of Section 397, Cr.P.C. is prohibited by sub-section (3) thereof, yet inherent power of the High Court is still available under Section 482, Cr.P.C. and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It has been further pointed out that object of Section 483 and the purpose behind conferring the revisional power under Section. 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. Thus, the power of the High Court is very wide, but the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). It has been laid down that nevertheless when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its judicial process or illegality of sentence or order. The Apex Court has concluded by stating :-

"Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. The High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. ....."

16-10-2001

9. Learned Advocate for the respondent No.2 has also relied upon Rajathi v. C. Ganesan, (1999) 6 SCC 326. In this case, the wife had presented a petition under Section 125, Cr.P.C. against her husband. The Magistrate granted her maintenance of Rs.200/- per month. The husband went in revision to the Court of Sessions. The Sessions Judge dismissed the revision and confirmed the order of the Magistrate. Husband then filed a petition under Section 482, Cr.P.C. in the High Court which was allowed and the petition of the wife for maintenance was dismissed. Wife approached the Apex Court by special leave. In this context, the Apex Court held that the very fact that inherent powers conferred on the High Court are vast would mean that these are circumscribed and could be invoked only on certain set principles. The Apex Court further observed that it was not necessary for the High Court to examine the whole evidence threadbare to exercise jurisdiction under Section 482 of the Code. In this set of facts, the Apex Court pointed out that the High Court wrongly exercised its jurisdiction under Section 482 of the Criminal Procedure Code in setting aside the order of maintenance.

10. Learned Advocate for the respondent No.1 has relied upon Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169. In this case, petition under Section 482, Cr.P.C. had been finally disposed of by the High Court after which miscellaneous petition was filed upon which orders were passed under inherent power under Section 482, Cr.P.C. The Supreme Court held that there is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction and therefore, such power cannot be exercised with the aid or under the cloak of Section 482 of the Code.

11. Learned Advocate for the applicant relied upon number of rulings to which I shall now make reference. He has placed reliance on Ganesh Narayan Hegde v. S. Bangarappa to which reference has already been made above. He has also relied upon Jitender Kumar Jain v. State of Delhi, (1998) 8 SCC 770. In this case, the Sessions Court had dismissed revision and petition under Section 482, Cr.P.C. was filed against the said revisional order. The High Court had dismissed petition under Section 482, Cr.P.C. on the ground that in such a case, second revision petition before the High Court did not lie. The Apex Court pointed out that the High Court failed to distinguish its separate powers under Section 397 of the Code as also under Section 482 of the said Code thereof. It was pointed out that it is true that a second revision petition does not lie before the High Court when one is dismissed by the Court of Sessions, but still the Court of Sessions is a Court subordinate to the High Court and as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure. It was pointed out that the High Court should not have dismissed the petition of the appellant on the premise as it has done, but it was otherwise open to the High Court not to interfere in a matter when examining a case under Section 482 of the Code of Criminal Procedure. The matter was accordingly remanded back to High Court.

12. Learned Advocate for the applicant has relied upon the judgment of Punjab and Haryana High Court in State of Haryana v. Chander Mohan, 2001 Cri LJ 2105 wherein it has been held that though second revision before the High Court is barred, in the facts of case, it could not be said that a petition under Section 482, Cr.P.C. was not maintainable or was outright liable to be dismissed. In this judgment, reliance has been placed on Krishnan v. Krishnadevi (supra).

13. Learned Advocate for the applicant has also placed reliance on judgment of Madras High Court in Royal Consultants Pvt. Ltd. v. Chief Enforcement Officer, 2001 Cri LJ 2464 In which it has been held that where the very jurisdiction of the Magistrate to try the accused is questioned, it cannot be said that the application under Section 482, Cr.P.C. would amount to circumventing the bar under Section 397(3), Cr.P.C. It was held that when the Court finds that the impugned orders are one without jurisdiction and vitiated by manifest error of law warranting interference, the Court has to invoke the inherent powers to set right the illegality.

14. In Mary Angel v. State of T. N., (1999) 5 SCC 209, the Apex Court has laid down that Section 482, Cr.P.C. stands independently from the other provisions of the Code and it expressly saves the inherent powers of the High Court. Therefore, to prevent abuse of the process of the Court or otherwise to secure the ends of justice, the High Court is empowered to pass orders under Section 482, Cr.P.C.

15. Therefore, from the position of law, as discussed above, it would follow that jurisdiction under Section 482, Cr.P.C. can be exercised to prevent abuse of process of Court or otherwise to secure the ends of justice. Besides this, the High Court can exercise power under Section 483, Cr.P.C. as well since the High Court has continuous superintendence over the Courts of Judicial Magistrates. The inherent powers under Section 482, Cr.P.C. are to be exercised sparingly, but the Court has to step in if it is otherwise necessary to secure the ends of justice. Therefore, the preliminary objection relating to the maintainability of the application under Section 482, Cr.P.C. is hereby rejected. This position is clear from the judgment of the Apex Court in Krishnan v. Krishnadevi (supra).

16. The applicant has in this application raised a question of law that the Courts below have misunderstood the scope and effect of the expression, "living in adultery" in sub-section (4) of Section 125, Cr.P.C. It is urged that the said expression speaks of a continuous course of conduct, but does not include stray instance of adultery or one or two lapses from virtue. In support of his argument, learned Advocate for applicant has placed reliance on a number of rulings. I shall, therefore, now refer to the rulings upon which learned Advocate for applicant has placed reliance in this respect.

17. In Udaivir Singh v. Smt, Vinod Kumari, (1985) Cri LJ 1923 (All), wife was living separately from husband and chastity of wife was doubted by husband. The High Court held that the wife was justified in living separately from husband and claiming maintenance.

18. In Chhagan Lal Devman v. State of Maharashtra (1990) 1 DMC 533, this Court has held that the expression "living in adultery" as used in Section 125, Cr.P.C. is to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue and the burden to prove allegations of adultery against the wife lives on the husband.

19. In Khem Chand v. State, (1990) 1 DMC 38 (All) it has been held that the cardinal principle is that in matrimonial or maintenance cases solitary evidence of a spouse attributing unchastity or adultery to the other party, should not be relied upon because such spouse is extremely interested in the case.

20. In Ravindra Singh v. Kapsi Bai, (1991) 2 DMC 422 (Madh Pra) it has been laid down that it is for the husband to prove that the wife is continuously committing violation of the marriage bed indulging in adulterous life, i.e. living in quasi permanent union with another. It has been further observed that to establish this, more than one instance of adultery has to be brought home to the knowledge of the wife, thereby constituting the term "living in adultery" within the meaning of sub-section (4) of Section 125 Criminal Procedure Code. In this case, it was found that considering the evidence in totality, barring the two instances of which husband had condoned one and except the second one which then took place or isolated act of adultery, there was no other evidence to infer that wife was living in adultery.

21. In Baishnab Charan Jena v. Ritarani Jena 1993 Cri LJ 238 (Orissa) it has been laid down that merely proving one or more instances of lapses in character of wife is not sufficient to absolve her husband from liability to pay maintenance to her and even assuming that the instances alleged by the husband are held to have been established, still he will not be entitled to succeed to deny his liability for payment of maintenance. It was further pointed out that the very allegation by the husband to castigate the wife as a person living in adultery entitles her to live separately from her husband and claim maintenance from him.

22. In Chandrakant Gangaram Gawade v. Sulochana Chandrakant Gawade (1996) 2 Mah LJ 341 this Court, after taking into consideration a number of rulings on the subject held that it is for the husband to prove that wife is living in adultery and a mere stray or single lapse on the part of the wife is not sufficient to bring her conduct within the meaning of the expression "living in adultery" as used in Section 125(4), Cr.P.C. and that it should be a continuous course of adulterous conduct. It is further pointed out that the husband cannot get over his liability to pay maintenance merely proving one or more instances of lapses on the part of the wife and he will have to produce additional evidence to establish continuous course of adulterous behaviour to wife.

23. In Narnath Thazhakuniyil Sandha v. Kottayat Thazhakunlyll Narayan 1999 Cri LJ 1663 the wife was actually found indulging in sexual intercourse with another person on one occasion and it was held that the words "living in adultery" under Section l25 (4), Cr.P.C. contemplate continuous course of conduct on the part of wife with paramour and it would be Improper to refuse maintenance to wife on the evidence adduced by husband showing only a single act of unchastity or few lapses from virtue on the part of wife. In this judgment also, a number of judgments, taking the same view on the subject, have been referred by the Kerala High Court.

24. Thus, the expression "living in adultery" in Section 125 (4), Cr.P.C. has to be a continuous course of adulterous conduct and stray instances of departure from virtue would not be sufficient to deny maintenance to wife. The fact that wife is living in adultery has to be established by the husband. In quasi criminal proceedings, the standard of proof would be pre-ponderance of evidence.

25. Now, coming to the case under consideration, the argument of the learned Advocate for the applicant is that the Courts below have misunderstood the scope and ambit of expression "living in adultery" which has to be a continuous course of conduct and on account of the said misunderstanding, the Courts have come to the conclusion that the husband has been able to establish that the applicant is living in adultery, but from the evidence on record the husband has failed to prove that the wife is living in adultery.

26. On the other hand, learned Advocate for the respondent No.1 has urged that there was no challenge to the evidence of husband on the question of adultery and that the adultery had been duly proved.

27. Learned APP urged before me that the finding on record does not stand the test of "lying in adultery" required to be established under Section 125 (4), Cr.P.C.

28. In order to establish that the applicant was living in adultery, the respondent No.1 examined himself and his father. According to the respondent No.1, the behaviour of the applicant along with his younger brother Madhu was somewhat suspicious and objectionable and that he suspected the character of the applicant and that there might be illicit relations between his brother and the applicant. According to the respondent No.1, when said Madhu was at Pandharkawda, the applicant used to send him letters but no such letters have been produced. According to him on 2-3-1989, he returned early from the field and found the applicant and his younger brother in one bed in naked condition. He stated that he shall be examining his younger brother Madhu as a witness, but he was not examined. He further stated that after the incident of 2-3-1989 his younger brother was sent at Pandharkawda for education, but the evidence on record is that he was at Pandharkwada much prior to this date. In fact, he himself admitted that at the time of their marriage, his younger brother took education at Pandharkawda. According to the respondent, he had told the incident to his father, but there was no mention of this fact in the pleading. Father of respondent who was examined as PW 2 went to the extent of saying that the respondent No.1 had told him that Madhu and his wife were in naked condition and were committing sexual intercourse with each other. Respondent No.1 did not say in his deposition that he had seen Madhu having sexual intercourse with his wife/applicant. According to PW 2, he had asked the applicant about the intercourse with Madhu, but the applicant kept mum and assured that she will not commit such act again. This evidence, can by no stretch of imagination, be said to be sufficient to fall within the ambit of expression "living in adultery" as used in Section 125 (4), Cr.P.C. so as to deny maintenance to the applicant on that ground. Therefore, the findings of the two Courts below to the effect that the applicant was living in adultery, cannot be sustained.

29. The Magistrate had come to the conclusion that the applicant was not able to maintain herself and the respondent No.1 had sufficient means. These findings are based on evidence on record and are not interfered with by the Additional Sessions Judge. The applicant had claimed maintenance of Rs.500/- per month. The respondent No.1 in his deposition has no where disclosed his income which is within his knowledge. In one breath he stated that he is not in a position to pay maintenance and in the next breath he stated that he is ready and willing to maintain the applicant. In the facts and circumstances, I am of the opinion that maintenance of Rs.500/- per month be awarded in favour of the present applicant from the date of filing of the application.

30. For the aforesaid reasons, criminal application is allowed and the respondent No.1 shall pay maintenance of Rs.500/- per month to the applicant from the date of filing of the application for maintenance. The order of rejection of maintenance by the two Courts below is set aside.

Petition allowed.