Vinod Kumar vs Smt. Vijaya Devi

Hon'ble Prafulla C. Pant, J.—This revision, is directed against the judgment and order dated 31.07.2004, passed by Sessions Judge, Pithoragarh, in criminal revision No. 10 of 2004, whereby said court has allowed the revision and directed the revisionist to pay maintenance at the rate of Rs. 400/- per month to his wife (present Respondent No. 1).

Heard Learned Counsel for the revisionist and learned A.G.A. None appeared on behalf of Respondent No. 1 even after being served sufficiently.

Brief facts of the case are that revisionist-Vinod Kumar, got married to Respondent Vijaya Devi in the year 1995. Out of wedlock, in the year 2000, a female child was born. An application was filed by Respondent-Vijaya Devi, u/s 125 Code of Criminal Procedure. against the revisionist, claiming maintenance at the rate of Rs. 500/- per month. It is pleaded by her that she is unable to maintain herself. It is also stated by her that the revisionist has means to pay the maintenance but he is neglecting to maintain her. The trial court (Judicial Magistrate, Pithoragarh), recorded the evidence and dismissed the application u/s 125 Code of Criminal Procedure. on the ground that the Respondent- Vijaya Devi, lives separately from her husband without any sufficient reason. Aggrieved by said order dated 17.01.2004, passed by Judicial Magistrate, Pithoragarh, in criminal misc. case No. 07 of 2003, criminal revision No. 10 of 2004, was filed by the wife (present Respondent No. 1). After hearing the parties, revisional court (Sessions Judge, Pithoragarh), vide impugned judgment and order dated 31.07.2004, allowed the revision and directed the revisionist to pay maintenance at the rate of Rs. 400/- per month to Respondent No. 1. Hence this petition.

Learned Counsel for the revisionist submitted that the Sessions Judge, Pithoragarh, has committed grave error of law in allowing the application u/s 125 Code of Criminal Procedure. It is argued that the cause of action arose within territorial jurisdiction of Judicial Magistrate, Champawat and District and Sessions Judge, Champawat. It is further argued that neither Judicial Magistrate, Pithoragarh, had power to entertain the application nor the Sessions Judge, Pithoragarh, had any territorial jurisdiction to allow the same u/s 125 Code of Criminal Procedure. Perusal of the papers on record, shows that marriage between the parties was solemnised within the territorial limits of District Champawat. Both the parties to the matrimony are resident of said District. As per the pleadings of the parties, the parties to the matrimony, started living separately in District Champawat. As such, this Court is of the view that the trial court at Pithoragarh, committed error of law in entertaining the application and the Sessions Judge, Pithoragarh, committed further error by allowing the application in respect of a cause, which did not, arose in its territorial jurisdiction. As such, the impugned order dated 31.07.2004, passed by Sessions Judge, Pithoragarh is liable to be set aside.

Sessions Division, Champawat, was created vide notification No. 174/xg/ 2001, dated 02.11.2001 of Government of Uttarakhand, and the application in question u/s 125 Code of Criminal Procedure. was moved in the year 2003, at Pithoragarh, subsequent to the creation of Sessions Division, Champawat.

Apart from this, having considered submissions of Learned Counsel for the revisionist and after going through the papers on record, this Court finds that even otherwise since the Respondent-Vijaya Devi, herself left house of her husband after leaving infant female child with her husband without any sufficient reason, as such, in view of provision contained in Sub-section (4) of Section 125 Code of Criminal Procedure. she was not entitled to any maintenance, as observed by the trial court.

For the reasons, as discussed above, on both the grounds, this revision deserves to be allowed. Accordingly, revision is allowed. Impugned judgment and order dated 31.07.2004, passed by Sessions Judge, Pithoragarh, in criminal revision No. 10 of 2004, Vijaya Devi v. Vinod Kumar, is hereby set aside.