Kulvinder Singh Vs. Manjeet Kaur and anr. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - things got from bad to worse with the passage of time and ultimately manjeet kaur and her son were deserted on 21,6.1983. they were turned out of the matrimonial home. he asserted that he has been turned out from his parental house by his father and is running from pillar to post in search of some job but has been unsuccessful till now. the additional sessions judge came to the conclusion that the petitioner is running a good business and is earning not less than rs.a.s. nehra, j.1. kulvinder singh has filed this petition under section 482 of the code of criminal procedure for quashing the order dated 2.7.1992 (annexure p-1) passed by the judicial magistrate, 1st class, faridabad, and the order dated 15.7.1993 (annexure p-2) passed by the additional sessions judge, faridabad.2. smt. manjeet kaur and her minor son pavittar singh filed a petition under section 125 of the code of criminal procedure (hereinafter referred to as the code) with the allegations briefly stated as under :--3. respondent no. 1, manjeet kaur, was lawfully married to kulvinder singh petitioner on 30.9.1981 at faridabad. out of the wedlock, pavittar singh (respondent no. 2) was born on 12.11.1982. shortly after the marriage, the petitioner and the other members of his family started treating manjeet kaur with cruelty and made her life virtually a hell. things got from bad to worse with the passage of time and ultimately manjeet kaur and her son were deserted on 21,6.1983. they were turned out of the matrimonial home. the petitioner entered into a second marriage with one iqbal kaur alias charanjit kaur, manjeet kaur (respondent no. 1) depends upon her parents and brothers. she has got no independent source of income to maintain herself and her minor son. on the other hand, kulvinder singh petitioner is a man of means and is running a workshop. he has shifted his business from ballabgarh to delhi and his income is around rs. 3000/- per month. he has neglected and refused to maintain his wife and son since the year 1983. the respondents prayed for maintenance allowance at the rate of rs. 1250/- per month.4. in the written statement, the petitioner-husband admitted his marriage with manjeet kaur but denied the allegations of cruelty and maltreatment. according to him, manjeet kaur (respondent no. j) had herself been misbehaving with him and the other members of the family and was in the habit of leaving the matrimonial home without his permission. the allegation of second marriage was denied. the petitioner-husband also asserted that manjeet kaur is residing in a house owned by her father-in-law and is earning sufficient amount from the business of lathe machines and the petition brought by her under section 125 of the code is not maintainable. according to the petitioner-husband, manjeet kaur is an i.t.i. trained teacher. regarding his own sources, he denied that he is possessed of sufficient means. he asserted that he has been turned out from his parental house by his father and is running from pillar to post in search of some job but has been unsuccessful till now.5. smt. manjeet kaur (respondent no. 1) herself appeared in the witness-box as pw-1 and narrated the allegations made in her petition under section 125 of the code. she examined pw-2 b.d. aggarwal, an employee of the punjab national bank, ballabgarh, who brought the summoned record and deposed that there was a current account in the name of m/s. vishvakarma engineering works, having kulwinder singh petitioner as its proprietor with their bank and that this account was opened on 15.1.1981 and was closed on 5-6-1985. exhibit pw 2/1 is the copy of that account.6. on 14.5.1992 when the case was taken up by the magistrate for the evidence of the petitioner, none appeared on his behalf and, as such, he was proceeded ex parte. on the basis of the ex parte evidence, the learned magistrate directed the petitioner to pay maintenance allowance at the rate of rs. 500/- per month to smt. manjeet kaur (respondent no. 1) and rs. 300/- per month to master pavittar singh from the date of the petition under section 125 of the code of criminal procedure. it was directed that the interim maintenance paid during the pendency of the petition under section 125 of the code of criminal procedure, shall be adjusted towards the arrears of maintenance. the revision petition of the petitioner was dismissed by the additional sessions judge, faridabad, on 15.7.1993.7. notice of this petition was given to the respondents. reply by way of affidavit of smt. manjeet kaur (respondent no. 1) has been filed. it has been stated in para 2 of the reply that the petitioner had been contesting the petition under section 125 of the code of criminal procedure and he deliberately absented on 14.5.1992; that at that stage, the case was fixed for the evidence of the petitioner; that he was afforded enough time to lead evidence and that it was only on 2.7.1992 that the petition under section 125 cr.p.c. was decided. it has been further stated in the reply that it is duly proved on the record that kulvinder singh petitioner refused and neglected to maintain the respondents.8. the learned counsel for the petitioner has contended that the learned additional sessions judge did not take into consideration the relevant factors and wrongly came to the conclusion that the respondents are entitled to maintenance. according to him, it was erroneously observed by the learned additional sessions judge that the income of the petitioner was not less than rs. 3000/- per month.9. on the other hand, the learned counsel for the respondents argued that the evidence on the record is sufficient to establish the allegations made in the petition under section 125 of the code of criminal procedure and that the additional sessions judge has rightly dismissed the revision petition of the petitioner.10. as mentioned above, the petitioner joined the proceedings before the learned magistrate for quite a long period. however, after the evidence of the wife (smt. manjeet kaur) was closed, he opted to be absent. none appeared on his behalf when the case was taken up for his evidence and was rightly proceeded against him on 14.5.1992. the case was then adjourned to 9.6.1992 for consideration and then to 1.7.1992. on these dates also, none appeared on behalf of the petitioner. as such, the evidence brought on the record by the wife (smt. manjeet kaur) stands unrebutted and is sufficient to establish that the petitioner neglected to maintain her wife (smt. manjeet kaur) and the minor son pavittar singh. there is no evidence on the record to establish that smt, manjeet kaur respondent has got any independent source of income. the additional sessions judge came to the conclusion that the petitioner is running a good business and is earning not less than rs. 3000/- per month smt. manjeet kaur respondent deposed as pw-1 that her son pavittar singh is a student and his monthly fee is rs. 70/- and that, besides this, she incurs conveyance charges because her son goes to the school by a three-wheeler. it is a matter of common knowledge that the education is becoming expensive day by day, in view of all these factors, it has to be concluded that the learned additional sessions judge did not commit any error in maintaining the order dated 2.7.1992 passed by the judicial magistrate 1st class, faridabad. the quantum of maintenance allowance for the respondents seems to be genuine and no interference under section 482 of the code of criminal procedure is called for.in view of the above-mentioned discussion, this petition is dismissed.