Rubina and Others vs State of U.P. and Others

Pramod Kumar Srivastava, J.—This revision has been filed against the order dated 21.10.2009 passed by Principal Judge, Family Court, Jhansi, in case No. 102/2006 Smt. Rubina and another v. Mohd. Javed under section 125 Cr.P.C., P.S. Prem Nagar, Jhansi. Admitted facts relating to this revision are that wife (revisionist Rubina) had filed a petition under section 125 Cr.P.C. with averment that her husband had treated with cruelty and deserted her without sufficient reasons, therefore she should be awarded maintenance under section 125, Cr.P.C. Husband (present respondent No. - 2 Mohd. Javed) had filed petition for restitution of conjugal rights against his wife (present revisionists) which was decreed by the Court of Civil Judge, Ist Class, Tikamgarh, M.P. That decree is still in effect. But wife (revisionist Rubina) had not obeyed the decree of the Court, and kept herself away from her husband. During hearing of this petition of maintenance Family Court had dismissed the petition for maintenance under section 125 Cr.P.C. by impugned order on the ground that case of restitution of conjugal rights of husband had been decreed, which is proof of the fact that wife Rubina Bano had deserted her husband without any sufficient reason, therefore her petition under section 125 Cr.P.C. is not maintainable. Aggrieved by this impugned revisionists have preferred present revision.

I have heard the learned Counsel for the revisionists and A.G.A. and perused the records.

Learned Counsel for the revisionist contended that in spite of decree of restitution of conjugal rights petition under section 125 Cr.P.C. is maintainable; and secondly that petition for maintenance should have been decided on merits irrespective of judgment of Family Court. Therefore impugned order is erroneous and revision should be allowed.

The judgment and decree of competent Civil Court has to be followed in any case. As against it the proceeding under section 125 Cr.P.C. is a summary proceeding which has no legal sanctity against the judgment of formal decree of competent civil Court. Unless reversed or set aside, the decree and findings of competent civil Court is binding on its parties, irrespective of the pendency or findings of any summary proceeding like petition under section 125 Cr.P.C. In present matter competent Civil Court (Civil Judge, Ist Class, Tikamgarh, M.P. had decreed Civil Case No. 6-A/2007 Mohd. Javed v. Smt. Rubina Bano), for restitution of conjugal rights, by judgment dated 17.12.2008, with finding that Smt. Rubina Bano had not been treated with cruelty by her husband Javed, and that she is living separately without any sufficient reason. Any contrary finding of judgment of summary proceeding in case under section 125 Cr.P.C. cannot overrule the final decree of competent Civil Court. Therefore learned Principal Judge, Family Court had committed illegality by passing impugned order and dismissing the petition under section 125 Cr.P.C. by impugned order. There appears no error or impropriety in impugned judgment that may require interference in impugned order by exercise of revisional jurisdiction. Therefore the revision is dismissed.