Anil vs The State of Maharashtra and Sow. Surekha

A.I.S. Cheema, J.—Heard counsel for petitioner. In this matter, notice was issued with direction that the matter will be finally decided at admission stage. Today I have heard counsel for petitioner as well as A.P.P. and Advocate for respondent No. 2 finally. Learned counsel for petitioner has vehemently argued that, in the mutual divorce Petition No. 551/2005, the respondent wife, while taking mutual divorce, had given up right of maintenance for herself and the minor daughter. According to learned counsel, he admits, she had no right to surrender the right of minor daughter and the present application does not challenge the same. But according to him, the wife could surrender her own right. It has been claimed that the respondent No. 2 wife filed another petition No. 164/2007 for maintenance and that was wrongly allowed. Counsel is relying on Section 127(3)(c) of the Code of Criminal Procedure as well as Section 125(2)(a) of the Maharashtra Amendment in the Code of Criminal Procedure to submit that, by mutual consent, and if lumpsum has been paid, right of maintenance could be surrendered. Learned counsel relied on the case of Shrawan Sakharam Ubhale Vs. Sau. Durga Shrawan Ubhale and others, , another judgment in the matter of Bhaiyan and Another Vs. State of Madhya Pradesh, and in the matter of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, in support of his contention that when Civil Court has granted decree wherein right has been surrendered, maintenance could not have been granted by the Family Court to divorced wife. Learned counsel for the respondents submitted, and A.P.P. tendered on record copy of order in Criminal Revision Application No. 269/2009, which is taken on record and marked "X", wherein the same present impugned order dated 7.7.2009 in Petition No. E-164/2007 was challenged by the petitioner and this Court (Coram: K.U. Chandiwal, J.) dismissed the revision application.

Having gone through the present application and having heard the learned counsel for petitioner at length, I find that the petitioner chose the option of resorting to revision to High Court against the impugned order and the learned Single Judge has already considered the judgment concerned under revisional jurisdiction and dismissed the revision. Thus, whether the impugned judgment and order concerned was correct, legal and proper has already been decided by the learned Single Judge. Section 397(3) of the Criminal Procedure Code bars second revision by same person when earlier one was filed in High Court or to the Sessions Judge. Invoking Section 482 of the Criminal Procedure Code, when High Court has earlier disposed of Revision by same person, would be against the spirit of Section 397(3) of the Criminal Procedure Code. In exercise of powers u/s 482 of the Criminal Procedure Code, I find it difficult to interfere in a manner, which would amount to entertaining revision of a judgment which has already been maintained by another Bench of Single Judge of this Court.

The Judge of Family Court had dealt with the contentions raised with reference to the earlier mutual divorce and giving up of the right of maintenance by the wife. The respondent No. 2 raised disputes before the Family Court with reference to the said mutual divorce and still the Court granted the maintenance. The judgment and order has been upheld in the revision application.

I do not find that in present application any ground has been raised which would persuade me to invoke inherent powers u/s 482 of the Code of Criminal Procedure so as to interfere in the matter. No error of law apparent on the face of record is shown. I thus decline to invoke inherent powers. In the result, the Criminal Application stands dismissed.