This petition has been filed by the applicant for quashing of the entire proceedings of Criminal Case No. 205 of 2011, under Section 126 Cr.P.C. , P.S. Badlapur, District Jaunpur pending in the court of Judicial Magistrate IINd, Jaunpur.
It is contended that the matter was referred to Mediation Centre of this Court vide order dated 25.8.2011 on the joint request made by the parties. Despite the matter being referred to the mediation centre the settlement between the parties could not be arrived at vide report of mediation centre dated 4.2.2012. It is contended by learned counsel that since the mediation in the matter has failed the matter may be decided on merits.
Heard learned counsel for the parties and perused the material on record.
Perusal of record indicates that the wife made a petition to the Magistrate under Section 125 Cr.P.C. alleging that the husband had turned her out of the house and that he was refusing and neglecting to maintain her and the children. This fact was disputed by the husband. He denied the opposite party no. 2 as her wife but in his written statement he has admitted that after the death of his first wife Sushila Devi, he kept the opposite party no. 2 without marriage. It is further visible from the order of the learned Magistrate that the husband has denied the fact that opposite party no. 2 is his legally wedded wife. On the evidence lead by the wife though the magistrate was not satisfied that the applicant was legally wedded wife but he has held that the children of applicant is entitled to get maintenance. Thus, he by order dated 22.4.2004 directed the husband to pay Rs. 200/- per month to the children till they attains the age of puberty. This order was questioned by the applicant as well as by opposite party no. 2 before the revisional court under section 397 Criminal Procedure Code. Revisional Court heard both the revisions together and dismissed the revision filed by the applicant (Husband) and allowed the revision filed by the opposite party no. 2 and remanded the matter back before the learned Magistrate for deciding the matter afresh in accordance with law vide order dated 2.3.2005. Thereafter, applicant preferred a Criminal Revision No. 1555 of 2005 before this Court and this Court vide order dated 16.3.2009 rejected the revision filed by the husband.
It is alleged that after the dismissal of the revision petition filed by the applicant, opposite party no. 2 preferred an application under section 125 Cr.P.C. before the learned Magistrate for grant of maintenance which is said to have been allowed ex-parte and the learned Magistrate vide order dated 5.7.2010 directed the husband to pay Rs. 1000/- per month to the opposite party no. 2. On coming to know about the said order, applicant is said to have preferred an application u/s 126 Cr.P.C. for recalling the ex-parte order dated 5.7.2010 which was rejected vide order dated 7.7.2011. It is this order which is subject matter of challenge before this Court.
The main question that calls for consideration is that whether there has been a denial of opportunity to the husband as contended by learned counsel for the applicant and whether this court ought to exercise its inherent powers under s. 482.
From the record, it appears to me that the husband has been appearing, disappearing and reappearing in this case as the proceedings amply show. It is tedious to narrate all that happened in this case right from 1994 to 2010. It is sufficient to say that the husband proceeded to file revision against the initial order granting maintenance to his children and thereafter against the order of remand passed by revisional court to this Court. Record of the case further reveals that this court in the said criminal revision has noted the fact that the respondent no. 2 is legally wedded wife of revisionist/applicant on the admission of revisionist itself in the proceedings under Guardian and Ward Act 1990. Thus it cannot be said that the revisionist had no knowledge of the case. Even the order of learned Magistrate u/s 125 Cr.P.C. clearly indicates that the applicant has been provided ample opportunity to contest the case but did not appear in the case.
The proceedings in the case go on to show that on some hearings he appeared and on some hearings he absented himself. This question was agrued before sessions court in revision and the revision Court after considering the evidence lead by the parties has recorded in its order that respondent no. 2 is legally wedded wife of applicant and thereby he remanded the matter back to the learned Magistrate and this fact was very well within the knowledge of the applicant itself.
Secondly, the important thing in this case is that the husband did not make any application to the trial magistrate for setting aside the ex parte proceedings. Section 126(2) Cr. P.C. enacts that the magistrate may proceed ex parte to hear and determine the case if he finds that the husband is willfully neglecting to attend the court :
"AND any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the magistrate may think just and proper."
This is a specific remedy. Under section 125 the person who is proceeded ex parte has this remedy, namely, to apply to the magistrate that for a stated good cause he was unable to appear and that the ex parte order may be set aside against him. Now it is well settled that if the party does not follow the remedy provided by the Code the power under s. 482 is not to be resorted to because there is specific provision in the Code for the redress of the grievance of the aggrieved party. Power under s. 482 has to be exercised sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. If a party makes an application to the magistrate for setting aside the ex parte order and he does not accede to the request the party may file a revision under s. 397 and also invoke the powers of this court under s. 482 because he can well contend that there has been a denial of justice to him because his application for setting aside the ex parte order has wrongly been rejected. This remedy for reasons best known to him the husband had not chosen to take. I am therefore, disinclined to exercise the inherent powers in this case mainly for two reasons. One that the remedy under S. 126 has not been persued. Secondly the husband's conduct throughout the proceedings over a period of years has not been fair. He has been appearing, disappearing and reappearing in the case at his will and pleasure. In a word his behavior is not deserving of meritorious consideration.
On the merits of the case I do not think that the order of the magistrate awarding Rs. 1000/- to the wife and Rs. 200/- to each children can in any sense be extravagant. There is a concurrent finding that the husband is neglecting to maintain the wife and the children. Both courts have found that the husband is a man of means. The amount fixed by the court is reasonable. I am not prepared to say that maintenance allowance of Rs. 1000/- to the wife and Rs. 200/- to each of the children is in any way excessive.
No good ground is made out by the learned counsel for the applicant to interfere with the order impugned. Application has no force and is accordingly dismissed. Interim order, if any, stands vacated.
Order Date :- 10.10.2012 RKS/