Guddu vs Kamli Devi and Others

Kuldip Singh, J.—This petition under Article 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure has been filed against the order dated 06.10.2010 passed by learned Sessions Judge, Kullu, in Revision Petition No. 3 of 2008, setting aside order dated 31.08.2009 passed by learned Chief Judicial Magistrate, Kullu, in Cr.M.A. No. 124-IV/2008.

The facts, in brief, are that Respondents 1 to 5 had filed a petition u/s 125 Code of Criminal Procedure against the Petitioner on the ground that Petitioner has sufficient means to maintain the Respondents, but he is not maintaining them. The Respondents who claimed themselves to be the wife and children of Petitioner claimed Rs. 2,000/- each per month on account of maintenance from the Petitioner. The Respondents have alleged that the Petitioner is earning Rs. 15,000/- per month and he can easily pay Rs. 2,000/- per month to each of the Respondents.

The petition was contested by the Petitioner and he has stated that he is maintaining the Respondents and has not refused to maintain them. He has stated that he is living in the house of father of Respondent No. 1 as ''ghar Jawain''. He has also taken the plea that whatever he is earning by cultivating the land of the father of the Respondent No. 1, he is spending on the Respondents.

The learned Chief Judicial Magistrate vide order dated 31.08.2009 has held that the Respondents herein have failed to prove that the Petitioner harassed and mal-treated the Respondent No. 1 and has compelled her to leave matrimonial home on 15.05.2008 along with Respondents 2 to 5. It has also been held that the Respondents have failed to prove that Petitioner has neglected the Respondents without sufficient cause and is not maintaining them, whereas, the Petitioner has established on record that Petitioner along with Respondents is residing in the house of father of Respondent No. 1 as ''ghar Jawain'' since the time of his marriage and children were born there. It has also been held that Petitioner used to work there and spends whatever he earns there.

The learned Sessions Judge held on 06.10.2010 that the Petitioner herein has attempted to get himself absolved from his liability that he is residing in the house of father of Respondent No. 1 as ''ghar Jawain''. This indicates that he does not want to maintain his wife as well as children. Once this fact has been proved that Petitioner has refused to maintain the Respondents, then Respondents, who are not having sufficient source of income, are entitled for maintenance from the Petitioner irrespective of the fact of his place of abode. He is also an able bodied person and he has refused to maintain the Respondents.

The learned Sessions Judge in the teeth of above findings, however, instead of himself deciding the revision finally after setting aside the order dated 31.08.2009 passed by learned Chief Judicial Magistrate, remanded the case to the learned Chief Judicial Magistrate to proceed with the matter in view of findings recorded by learned Sessions Judge. The entire matter was before the learned Sessions Judge along with evidence. It was for the learned Sessions Judge to decide the controversy as a whole in accordance with material on record and law applicable in the matter. In the facts and circumstances of the case, the learned Sessions Judge has erred in remanding the case to the Chief Judicial Magistrate.

It will not be in the interest of either party that this Court while exercising powers under Article 227 read with Section 482 Code of Criminal Procedure instead of remanding the case to learned Sessions Judge should decide the matter himself inasmuch as this will deprive the aggrieved party right of filing appropriate proceeding in this Court against the decision of learned Sessions Judge. Therefore, taking into consideration the entire facts and circumstances of the case, the order dated 06.10.2010 passed by learned Sessions Judge in Revision Petition No. 3 of 2008 is set aside. The case is remanded to learned Sessions Judge, Kullu, with a direction to decide the revision petition himself in accordance with law on merits preferably within a period of three months from the date of receipt of copy of this judgment along with record. Accordingly, the petition is allowed in the above terms. The parties are directed to appear before learned Sessions Judge, Kullu, on 02.09.2011. The record be sent back to the learned Sessions Judge, Kullu, so as to reach before the date fixed.