Kishore vs Smt. Kalli and Others

G.D. Srivastava, J.—This petition u/s 482 Code of Criminal Procedure has teen moved by Kishore against his wife Smt. Kalli and against the minor daughter Kumari Sanynat. It appears that Smt. Kalli moved an application u/s 488 Code of Criminal Procedure and this application was contested by the Petitioner on the ground that Smt. Kalli was living in adultery. The matter went upon to the High Court and it was ultimately decided that Smt. Kalli was entitled to maintenance and a sum of Rs. 30/- was fixed as the rate of maintenance. Now when Smt. Kalli applied for the realisation of the maintenance allowance, the present Petitioner came forward with an objection that he was prepared to keep Smt. Kalli with him,. The Munsif Magistrate Banda rejected the Petitioner''s objection. A revision was filed against this order of the Magistrate and it was dismissed by the learned Sessions Judge, Banda on 23-4-76.

The only argument raised on behalf of the Petitioner was that the Munsif-Magistrate was not justified in rejecting the Petitioner''s objection with reference to the allegations made by the Petitioner in the original case u/s 488 Code of Criminal Procedure. In other words, the argument was that the Munsif-Magistrate committed an illegality in considering the evidence of a previous case. Strictly speaking, the realisation proceedings are a continuation of the original case. Moreover, it cannot be said that the Munsif-Magistrate considered the evidence of the previous case. In fact, he took into consideration the previous allegation of adultery made by the Petitioner. When an objection is raised by the husband that he is ready to maintain the wife, it is the duty of the Court to consider whether the offer is a bona fide one or not. Obviously at one stage the Petitioner had alleged that the wife was living in adultery and at the other stage he says that he is ready to keep the wife and, therefore, it is not possible to reconcile the two positions. The two Courts below, therefore, did not commit any irregularity in rejecting the Petitioner''s objection. The application u/s 482 Code of Criminal Procedure has to be rejected. If the wife is really living in adultery, the Petitioner has other remedies open to him.

In the result, the petition fails and is hereby rejected. The stay order is vacated.