ORDER
D.K. Sinha, J.
1. The petitioner has preferred this Cr. Revision challenging the legality, propriety and correctness of the order impugned dated 26.7.2008 passed under Section 127(1) of the Code of Criminal Procedure by the Principal Judge, Family Court, Jamshedpur in Misc. Case No. 167 of 2005 by which the maintenance amount, which was earlier given to Smt. Anasuya, opposite party herein to the tune of Rs. 350/- per month was enhanced on her petition dated 4.10.2007 to the extent of Rs. 3,000/- per month directing the petitioner to pay w.e.f. 4.10.2007.
2. The fact of the case in short was that the opposite party preferred a petition under Section 125 Cr.P.C. before the Judicial Magistrate, Ist class, Jamshedpur which was registered as Misc. Case No. 30 of 1988 and the same was allowed in terms of the order dated 24.7.1993 asking the petitioner to pay Rs. 350/- per month since 24.7.1993.
3. The opposite party after a long interval preferred a petition under Section 127(1) of Cr.P.C. before the Principal Judge, Family Court, Jamshedpur for enhancement of maintenance amount which was registered as Misc. Case No. 167 of 2005 and after considering the claim of the opposite party herein and the rejoinder of the petitioner, passed the order allowing the maintenance amount at the enhanced rate which was challenged by the petitioner in Cr. Revision No. 941 of 2007 before the Jharkhand High Court. This Court disposed of the Cr. Revision on 29.11.2007 with the following observation:
According to the petitioner, the maintenance granted to opposite party Smt. Anasuya was not in accordance with law. It is further submitted that according to the custom prevalent in the area, she cannot be married with him. However, the learned Family Court, Jamshedpur, has granted the maintenance to her in the year 1988 out of Misc. Case No. 30 of 1988 at the rate of Rs. 350/- per month, which he is paying.
However, later on, the Family Court in Misc. Case No. 167 of 2005 has enhanced the maintenance amount to Rs. 3000/- per month.
In view of the provisions where such enhancement has been granted, the matter is remitted back to the Family Court, Jamshedpur to consider all these points of law without being prejudiced by the order of this Court and whether the opposite party is entitled of any maintenance specifically to the enhanced amount or not
With the aforesaid observation and directions, this revision stands disposed of.
4. pursuant to such observation of this Court, the Principal Judge, Family Court, Jamshedpur by a detailed order dated 26.7.2008, which is impugned herein, upheld his earlier order and thereby directed the petitioner to pay the maintenance amount to the tune of Rs. 3,000/- per month to the opposite party w.e.f. 4.10.2007 which has been challenged in the present Cr.Revision on the ground that provision of Section-127(2) of the Code of Criminal Procedure could not be appreciated by the Principal Judge, Family Court, Jamshedpur in its right perspective which speaks:
Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under Section 125 of Cr.P.C. should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
5. The petitioner appearing in person admitted that he had filed a petition under Section 9 of the Hindu Marriage Act, 1955 before Principal Subordinate Judge, Vishakhapatnam vide O.P. No. 107 of 1988 on 5.10.1999 for restitution of conjugal rights and the respondent-opposite party herein had only once appeared. During the process of reconciliation proceeding the opposite party refused to join the society of the petitioner and for that she had assigned no reason for doing so, though, as a matter of fact he (petitioner) should have preferred a petition under Section 11 of the Hindu Marriage Act, 1955 for declaration of their marriage void ab initio. The law as contained in Section 125(4) of Cr.P.C. as quoted below gives a guide line which speaks:
No wives shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband, under this section, if she is living in adultery or if, without any sufficient reason, she refuses to live with her husband or if they are living separately with mutual consent.
6. The petitioner submitted that even then the opposite party refused to join his society. Thereafter, the petitioner preferred a suit under Section 13(1)(i)(b) of the Hindu Marriage Act seeking a decree of divorce as against the respondent-wife which was allowed and decreed vide Judgment dated 8th February 1996. While disposing of the petition filed under Section 13(1)(i)(b) of the Hindu Marriage Act, the learned Judge, Family Court at Visakhapatnam observed:
Admittedly, the respondent has filed maintenance case and interim maintenance was also granted and the same is being paid by the petitioner herein. The petitioner has to pay the maintenance as per provision of law under Sections 24 and 25 of the Hindu Marriage Act and respondent did not adduce any evidence in this regard for claiming anything. Thereafter he is liable to comply with the order of maintenance after due enquiry.
7. The petitioner interpreted that the order passed under Section 125 or under Section 127(1) of Cr.P.C. by the Principal Judge, Family Court, jamshedpur was not maintainable in view of the judgment made by the Judge, Family Court at Visakhapatnam in O.P. No. 625 of 1995 under Section 13(1)(i)(b) of the Hindu Marriages Act wherein it was observed in explicit words that the petitioner had to pay maintenance as per provision of law under Sections 24/25 of the Hindu Marriage Act, 1955 but the respondent-wife did not prefer any petition under the she said provisions for interim maintenance or otherwise and that she was entitled to maintenance only after due enquiry under Sections 24/25 of the Hindu Marriage Act and not under the provisions of Section 125 or under Section 127(1) of Cr.PC. at the enhanced rate. Finally the petitioner submitted that the Judgment passed and decree prepared by the Judge, Family Court at Visakhapatnam in O.P. No. 625 of 2005 shall prevail over the order impugned dated 26.7.2008 passed by the Principal Judge, Family Court, Jamshedpur in Misc. Case No. 167 of 2005 by which maintenance to the tune of Rs. 350/- was enhanced to Rs. 3,000/- per month putting heavy monetary burden upon the petitioner to pay to the opposite party Smt Anasuya on monthly basis.
8. The learned Counsel Mr. Prabhat Kumar Sinha appearing on behalf of the Opposite party Smt. Anasuya submitted that the petitioner has imputed allegations after allegations against the Principal Judge, Family Court Jamshedpur by assailing the order impugned dated 26.7.2008 by which maintenance amount earlier granted to the opposite party Smt. Anasuya was enhanced from Rs. 350/- to Rs. 3000/- per month upon consideration of her petition filed under Section 127(1) of Cr.P.C. in the back drop of changing circumstances as also upon the remand order passed in Cr.Rev. No. 941 of 2007 by this Court on 29.11.2007. The learned Counsel pointed out that the learned Principal Judge, Family Court, Jamshedpur by a detailed order dated 26.7.2008 reconsidered the matter and maintained his earlier view of enhancement. The petitioner had admitted in O.P. 625 of 1995 that Hindu Marriage was solemnized between him and the opposite party Smt. Anasuya on 9.10.1986 which was dissolved by a decree of divorce on the ground of desertion and that in the said O.P. 625 of 1995 opposite party Smt. Anasuya was denied opportunity to plead that there was valid marriage between the parties and that the valid marriage was precondition for passing a decree of divorce. The learned Counsel contended that it was the petitioner who had deserted the opposite party Smt. Anasuya and during such period of desertion the petitioner solemnized second marriage before their marriage was dissolved by a decree of divorce and for such reason opposite party was not inclined to live with him. The order impugned, therefore, passed under Section 127(1) of the Code of Criminal Procedure does not call for interference for want of any order under Sections 24/25 of the Hindu Marriage Act in favour of the opposite party herein.
9. Having regard to the facts and circumstances of the case, I find the short question that has been raised in the instant Criminal Revision is as to whether the order impugned dated 26.7.2008 passed by the Principal Judge, Family Court, Jamshedpur in Misc. Case No. 167 of 2005 under Section 127(1) of the Code of Criminal Procedure calling upon the petitioner to pay maintenance at the enhanced rate of Rs. 3000/- per month is maintainable in view of the observation made by the Judge, Family Court at Vishakhapattanam in O.P. 625 of 1995 holding that the opposite party herein was entitled to maintenance under Sections 24/25 of the Hindu Marriage Act.
10. Admittedly, no order was passed under Sections 24/25 of the Hindu Marriage Act, 1955 as not being agitated by the opposite party in the divorce suit brought about under Section 13(1)(i)(b) of the Hindu Marriage Act and therefore, it cannot be said that the Principal Judge Family Court, Jamshedpur was not within his jurisdiction in deciding and drawing an order under Section 127(1) of Cr.P.C. There was no embargo under Section 127(2) of Cr.P.C. for want of any order under Sections 24/25 of the Hindu Marriage Act.
11. To sum up the entire facts on the record and arguments on behalf of the parties, it is noticed that the petitioner had initially preferred a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in O.P. 107 of 1988 before the Principal Subordinate Judge at Visakhapatnam which was decreed on 5.10.1999 but without restitution of conjugal rights of the petitioner. Thereafter he preferred O.P 625 of 1995 before the Judge, Family Court at Visakhapatnam under Section 13(1)(i)(b) of the Hindu Marriage Act, 1955 seeking decree of divorce and the same was decreed on 8.2.1996 and thereby, the marriage between the petitioner and opposite party herein was dissolved. The argument advanced by the petitioner in person that the order passed under Section 127(1) of the Code of Criminal procedure granting maintenance to the opposite party at enhanced rate to the tune of Rs. 3000/- per month by the order impugned was illegal and uncalled for in view of the fact that no order was passed for ad interim maintenance under Sections 24/25 of the Hindu Marriage Act attracting the provision of Section 127(2) of Cr.P.C. has got no force at all in the eyes of law. The party seeking relief has got alternative remedy either way. Law as expressed under Section 127(2) of Cr.P.C. putting restriction for an order to be recorded under Section 127(1) of the Code of Criminal Procedure is relevant only when there is already an order recorded by a competent court of Civil jurisdiction under Sections24/25 of the Hindu Marriage Act 1995. The petitioner failed to show any reasonable ground so as to call for interference in the order impugned dated 26.7.2008 passed by the Principal Judge Family Court Jamshedpur in Misc. Case No. 167 of 2005. I do not find substance in the present Cr. Rev. as brought about by the petitioner who appeared in person, accordingly, this Criminal Revision is dismissed. I must deprecate the conduct of the petitioner who indiscriminately used derogatory language in the petition against the learned Principal Judge, Family Court, Jamshedpur.
12. The I.A. No. 1024 of 2009 and I.A. No. 845 of 2009 being ancillary in nature are also disposed of in view of the order passed in the main petition herein before.
13. This Court in Criminal Revision has got no jurisdiction to declare the marriage of the petitioner with the opposite party void ab-initio.