Sanjay Kumar Shrivastava Vs. Smt.Pratibha Shrivastava Judgement Given By: Hon'ble Shri Justice U.C. Maheshwari - Court Judgment

SooperKanoon Citationsooperkanoon.com/1119996
CourtMadhya Pradesh High Court
Decided OnJan-16-2014
AppellantSanjay Kumar Shrivastava
RespondentSmt.Pratibha Shrivastava Judgement Given By: Hon'ble Shri Justice U.C. Maheshwari
Excerpt:
cr.r.no.1584 of 2012 16.01.2014 shri amrit ruprah, learned counsel for the applicant. shri vinay pandey, learned counsel for the respondent. the applicant's counsel is heard on the question of admission. the applicant - husband has filed this petition under section 397 r/w section 401 of cr.p.c being aggrieved by the order dated 25.7.2012 passed by additional sessions judge, rehli, district sagar in criminal revision no.137/2012 setting aside the order dated 12.4.2012 passed by the judicial magistrate, 1st class, rehali, district sagar in mj.no.60/2005, dismissing the application of respondent filed under section 125 of cr.p.c.and by allowing the revision of respondent in part after setting aside such order of jmfc has remitted the matter to such court again with some directions to decide afresh. the facts giving rise to this revision in short are that the respondent herein filed the impugned application under section 125 of cr.p.c.in the aforesaid court of jmfc and aforesaid order dated 12.4.2012 was passed by the trial court in third inning of the case, whereby the aforesaid application of the respondent filed under section 125 of cr.p.c was dismissed but on filing the revision against such dismissal by the respondent taking into consideration the decree of consenting divorce passed by the family court, sagar, vide dated 6.4.2005 in co.no.53-a/04 by allowing the revision in part by the impugned order dated 25.7.2012, the case has been remitted back with the direction to consider the question whether rs.50,000/- given by the applicant to the respondent at the time of aforesaid mutual divorce could be treated to be sufficient circumstance to draw the inference that respondent herein had left her future rights to get maintenance from the applicant because as per findings of the revisional court in the impugned order, such question was specifically considered by the trial court in any of the order passed upto the third inning and such remand order is under challenge at the instance of the applicant - husband before this court. the applicant's counsel after taking me through the earlier orders of the court below and the impugned order of the revisional court, so also other papers placed on record argued that after passing the aforesaid consenting decree of divorce on dated 6.4.2005 pursuant to the terms of such compromise, the respondent had already taken rs.50,000/- and left her future rights to take any maintenance or any other benefit under the personal law from the applicant. so considering such aspect the revisional court was bound to affirm the order of the trial court dismissing the application of the respondent filed under section 125 of cr.p.c.instead to remand the matter. in the cours.of arguments, in view of aforesaid consenting order of divorce and its decree dated 6.4.2005, (ann. a-9).passed by the family court, sagar on asking the applicant's counsel whether in such order of decree any relief has been granted in favour of the applicant holding that the respondent has left all her rights to get future maintenance or other benefits from the applicant, after perusing such order, (ann. a-9) and the proceeding of such case (ann. a-8).she said that although such specific condition has not been stated by the family court either in the order, (ann. a-9) or in proceedings, (ann. a-8).but in the application filed with the joint signatures of the parties before the family court under section 13-b of the hindu marriage act such fact was specifically mentioned in this regard, she referred para 13 (4) of such application. after perusing the same in the light of such pleadings, on asking the applicant's counsel whether in the lack of any relief with respect of such pleading in the impugned decree of consenting divorce, the applicant is entitled to get the benefit of such pleading unless the same is made a part of decree. such question was asked in the light of principle that no court or the authority or the executing court of such decree itself cannot go behind the terms of the decree. on which applicant's counsel firstly said that the impugned judgment and decree, (ann. a-9) shall be read alongwith the petition filed under section 13 -b (ann. a-5) as every part and parcel of the application shall be treated to be the part of the judgment and decree passed on such application. again on asking that in the lack of such specific averment in the order of decree, how the application, (ann. a-5) could be treated as part of the order, (ann. a-9).on which applicant's counsel seeks permission to withdraw this petition with liberty to raise aforesaid objection before the trial court while holding the trial in compliance of the impugned remand order and seeks liberty to approach with an appropriate application either in the shape of revision or otherwise permissible under the law to the aforesaid family court to correct, modify or amend the decree in terms of the petition, (ann. a-5) and subject to order in such review petition or other proceeding to raise additional objection before the trial court of the present matter with further prayer for appropriate direction that trial court be directed to extend sufficient period near about six months to the applicant to approach the aforesaid family court and obtain the aforesaid appropriate order of modification of the decree of divorce. other side did not have any objection in permitting the applicant to withdraw this petition on the above mentioned terms and liberty as prayed by his counsel. on consideration in the available circumstances by allowing the aforesaid prayer of the applicant's counsel, the revision petition is hereby dismissed as withdraw and not pressed with all liberties as prayed by the applicant's counsel. it is further observed that on filing an appropriate application alongwith aforesaid review petition or other proceeding before the family court for modification, correction or amendment of the decree for condoning the delay, then such court is directed to consider such application keeping in view the position that in matrimonial matters the case should be decided for resolving all relating disputes and the aforesaid dispute has arisen on the basis of such decree in the cours.of proceeding of an application filed by the respondent under section 125 of cr.p.c., which is still pending before the trial court for adjudication by adopting the lenient attitude with justice oriented approach and decide such petition on merits rather than on the question of technical question of limitation. however, the trial court of the present matter is directed to extend the period of six months to the applicant to file appropriate proceeding before the family court and on obtaining the order on the aforesaid question as such the trial court shall proceed with the matter on merits but shall not decide the matter finally upto six months or till the date deciding the aforesaid question by the family court, which ever is earlier if the aforesaid proceeding is filed by the applicant. c c as per rules ( u.c.maheshwari ) judge bks
Judgment:

Cr.R.No.1584 of 2012 16.01.2014 Shri Amrit Ruprah, learned counsel for the applicant.

Shri Vinay Pandey, learned counsel for the respondent.

The applicant's counsel is heard on the question of admission.

The applicant - husband has filed this petition under Section 397 r/w Section 401 of Cr.P.C being aggrieved by the order dated 25.7.2012 passed by Additional Sessions Judge, Rehli, District Sagar in Criminal Revision No.137/2012 setting aside the order dated 12.4.2012 passed by the Judicial Magistrate, 1st Class, Rehali, District Sagar in MJ.No.60/2005, dismissing the application of respondent filed under Section 125 of Cr.P.C.and by allowing the revision of respondent in part after setting aside such order of JMFC has remitted the matter to such court again with some directions to decide afresh.

The facts giving rise to this revision in short are that the respondent herein filed the impugned application under Section 125 of Cr.P.C.in the aforesaid court of JMFC and aforesaid order dated 12.4.2012 was passed by the trial court in third inning of the case, whereby the aforesaid application of the respondent filed under Section 125 of Cr.P.C was dismissed but on filing the revision against such dismissal by the respondent taking into consideration the decree of consenting divorce passed by the family court, Sagar, vide dated 6.4.2005 in Co.No.53-A/04 by allowing the revision in part by the impugned order dated 25.7.2012, the case has been remitted back with the direction to consider the question whether Rs.50,000/- given by the applicant to the respondent at the time of aforesaid mutual divorce could be treated to be sufficient circumstance to draw the inference that respondent herein had left her future rights to get maintenance from the applicant because as per findings of the revisional court in the impugned order, such question was specifically considered by the trial court in any of the order passed upto the third inning and such remand order is under challenge at the instance of the applicant - husband before this court.

The applicant's counsel after taking me through the earlier orders of the court below and the impugned order of the revisional court, so also other papers placed on record argued that after passing the aforesaid consenting decree of divorce on dated 6.4.2005 pursuant to the terms of such compromise, the respondent had already taken Rs.50,000/- and left her future rights to take any maintenance or any other benefit under the Personal Law from the applicant.

So considering such aspect the revisional court was bound to affirm the order of the trial court dismissing the application of the respondent filed under Section 125 of Cr.P.C.instead to remand the matter.

In the couRs.of arguments, in view of aforesaid consenting order of divorce and its decree dated 6.4.2005, (Ann.

A-9).passed by the Family Court, Sagar on asking the applicant's counsel whether in such order of decree any relief has been granted in favour of the applicant holding that the respondent has left all her rights to get future maintenance or other benefits from the applicant, after perusing such order, (Ann.

A-9) and the proceeding of such case (Ann.

A-8).she said that although such specific condition has not been stated by the Family Court either in the order, (Ann.

A-9) or in proceedings, (Ann.

A-8).but in the application filed with the joint signatures of the parties before the family court under Section 13-B of the Hindu Marriage Act such fact was specifically mentioned in this regard, she referred para 13 (4) of such application.

After perusing the same in the light of such pleadings, on asking the applicant's counsel whether in the lack of any relief with respect of such pleading in the impugned decree of consenting divorce, the applicant is entitled to get the benefit of such pleading unless the same is made a part of decree.

Such question was asked in the light of principle that no court or the authority or the executing court of such decree itself cannot go behind the terms of the decree.

On which applicant's counsel firstly said that the impugned judgment and decree, (Ann.

A-9) shall be read alongwith the petition filed under Section 13 -B (Ann.

A-5) as every part and parcel of the application shall be treated to be the part of the judgment and decree passed on such application.

Again on asking that in the lack of such specific averment in the order of decree, how the application, (Ann.

A-5) could be treated as part of the order, (Ann.

A-9).on which applicant's counsel seeks permission to withdraw this petition with liberty to raise aforesaid objection before the trial court while holding the trial in compliance of the impugned remand order and seeks liberty to approach with an appropriate application either in the shape of revision or otherwise permissible under the law to the aforesaid family court to correct, modify or amend the decree in terms of the petition, (Ann.

A-5) and subject to order in such review petition or other proceeding to raise additional objection before the trial court of the present matter with further prayer for appropriate direction that trial court be directed to extend sufficient period near about six months to the applicant to approach the aforesaid family court and obtain the aforesaid appropriate order of modification of the decree of divorce.

Other side did not have any objection in permitting the applicant to withdraw this petition on the above mentioned terms and liberty as prayed by his counsel.

On consideration in the available circumstances by allowing the aforesaid prayer of the applicant's counsel, the revision petition is hereby dismissed as withdraw and not pressed with all liberties as prayed by the applicant's counsel.

It is further observed that on filing an appropriate application alongwith aforesaid review petition or other proceeding before the family court for modification, correction or amendment of the decree for condoning the delay, then such court is directed to consider such application keeping in view the position that in matrimonial matters the case should be decided for resolving all relating disputes and the aforesaid dispute has arisen on the basis of such decree in the couRs.of proceeding of an application filed by the respondent under Section 125 of Cr.P.C., which is still pending before the trial court for adjudication by adopting the lenient attitude with justice oriented approach and decide such petition on merits rather than on the question of technical question of limitation.

However, the trial court of the present matter is directed to extend the period of six months to the applicant to file appropriate proceeding before the family court and on obtaining the order on the aforesaid question as such the trial court shall proceed with the matter on merits but shall not decide the matter finally upto six months or till the date deciding the aforesaid question by the family court, which ever is earlier if the aforesaid proceeding is filed by the applicant.

C c as per rules ( U.C.Maheshwari ) Judge bks