Himachal Pradesh High Court
Kapur Chand vs Kapur Chand on 20 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
ON THE 20th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC NO.355
OF 2019
Between:
KAPUR CHAND, SON OF LATE SH.
SHETU RAM, R/O VILLAGE BOIDHAR,
P.O. CHOWAI, TEHSIL ANNI,
DISTRICT KULLU, HIMACHAL
PRADESH .....PETITIONER
(BY SH. KUSH SHARMA, ADVOCATE)
AND
1. SATYA DEVI, W/O SH. KARAM DASS,
R/O VILLAGE RAKAGI, P.O. KOTHI,
TEHSIL ANNI, DISTRICT KULLU, H.P.
2 KUMARI MUSKAN D/O SATYA DEVI,
(THROUGH RESPONDENT NO.1) R/O
VILLAGE RAKAGI, P.O. KOTHI,
TEHSIL ANNI, DISTRICT KULLU,
H.P. ....RESPONDENTS
(BY SH.ROMESH VERMA,
ADVOCATE)
Reserved on 23.4.2022
Decided on 20.6.2022
Whether approved for reporting?
_____________________________________________________________
This petition coming on for pronouncement this day,
the Court passed the following:
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2
ORDER
Petitioner has approached this Court invoking provisions of Section 482 Cr.P.C for settingaside order dated .
6.6.2019, passed by learned Judicial Magistrate First Class, Anni, District Kullu (JMFC) in Miscellaneous Application No.294 of 2018, titled as Satya Devi and another vs. Kapur Chand, whereby an application/objection preferred by petitioner, under Section 127 of Cr.P.C has been rejected.
2. Brief facts of the case are that respondent No.1, claiming herself legally wedded wife of the petitioner, had filed an application No.134 of 2008, titled as Satya Devi vs. Kapur Chand, under Section 125 of Cr.P.C for grant of maintenance to her and her daughter. The said application was allowed vide order dated 11.3.2010, and petitioner was directed to pay Rs.350/ and Rs.250/ per month as maintenance allowance to respondents No. 1 and 2, respectively
3. Petitioner had assailed aforesaid order dated 11.3.2010, by preferring an application No.614 of 2011 under Section 126 (2) Cr.P.C. The said application was dismissed by Judicial Magistrate First Class, Anni, District Kullu, vide order dated 25.4.2015.
::: Downloaded on - 20/06/2022 20:02:57 :::CIS 34. The aforesaid order dated 25.4.2015, was assailed by the petitioner by filing Cr.MMO No.179 of 2015 in this High Court.
The said petition was dismissed by the High Court on 19.6.2017.
.
5. During intervening period, respondents had preferred an application No.54 of 2013 under Section 127 of Cr.P.C before the learned Judicial Magistrate First Class, Anni for enhancement of maintenance. The said application was allowed vide order dated 3.10.2017, and maintenance allowance was enhanced at the rate of Rs.1800 and Rs. 1200/ per month in favour of respondents No. 1 and 2 respectively.
6. For nonpayment of maintenance amount, respondents filed a Miscellaneous Application No. 294 of 2018 for execution of the order dated 3.10.2017.
7. In response to the aforesaid Execution Petition, petitioner filed a reply and objection under Section 127 (1) of Cr.P.C for cancellation of order granting maintenance passed on 11.3.2010 and also enhancement order dated 3.10.2017, under the changed circumstances.
8. Objection raised by the petitioner was that respondent No.1 is legally wedded wife of one Karam Dass and is residing with him presently and thus, neither she is wife of the ::: Downloaded on - 20/06/2022 20:02:57 :::CIS 4 petitioner nor respondent No.2 has ever born out of the wedlock of the petitioner and respondent No.1.
9. To substantiate his plea, petitioner has placed on .
record, copy of Marriage Registration Certificate issued by Registrar, Birth and Death and Marriage Registration, Gram Panchayat Kandidhar, Development Block, Banjar, District Kullu, issued on 3.8.2018 and copy of Family Register of Devi Ram who is father of Karam Dass, wherein respondent No.1 Satya Devi has been stated to have been married to Karam Dass. He has also placed on record copies of certificates issued by Secretary of his Gram Panchayat, Shilli and copy of Parivar Register of his family certifying therein that neither marriage of petitioner and respondent No.1 has been recorded in Gram Panchayat record nor the name of respondent No.2 Muskan has been entered as daughter of Kapur Chand in the family of Kapur Chand (petitioner).
10. It was claimed by the petitioner that in aforesaid facts and circumstances, application under Section 125 (3) Cr.P.C is not maintainable and has become infructuous and is nullity against the petitioner and prayer made to change vary or cancel original order dated 11.3.2010 as well as order dated 3.10.2017, passed in Case No. 54 of 2013, under Section 127 (1) of Cr.P.C.
::: Downloaded on - 20/06/2022 20:02:57 :::CIS 511. In response, aforesaid objections/ reply was filed on behalf of respondents stating therein that reply/objections filed on behalf of petitioner cannot be decided in proceedings under Section .
125 (3) Cr.P.C and it was denied that respondents No. 1 had concealed the material facts or mislead the Court with further submissions that at the time of awarding maintenance, opportunity of being heard was provided to the petitioner where he had admitted the fact of his marriage with respondent No.1 and till filing of objections, during the Execution of petition, he never disputed his relationship with respondent No.1 and respondent No.2. It was also stated in the reply that respondent No.1 had solemnized marriage with the petitioner after she had ceased to be wife of Karam Dass with further submissions that Panchayat record depicting her as wife of Karam Dass, is not true and correct and further that there was no change in circumstances as were existing at the time of awarding the maintenance and filing of Execution Petition.
12. Respondents had also placed on record certified copy of application under Section 125 Cr.P.C filed by them and certified copy of reply thereof filed by the petitioner before Executing Court.
In the said reply, petitioner had admitted his relationship with respondents in his written admission. As such, relationship of the ::: Downloaded on - 20/06/2022 20:02:57 :::CIS 6 petitioner with respondent No.1 as husband wife and with respondent No.2 as a father has never been disputed by him till filing of objections in the execution petition filed by the .
respondents.
13. Learned Judicial Magistrate has considered the aforesaid facts and circumstances and has passed the impugned order.
14. It is contended on behalf of petitioner that in view of existence of marriage of respondent No.1, and Karam Dass, marriage between petitioner and respondent No.1 if any, is void ab initio for being solemnized during life time of spouse of respondent No.1 i.e Karam Dass, but without dissolution of previous marriage and, therefore, respondent No.1 is not legally wedded wife of petitioner and thus, is not entitled for any maintenance.
15. To substantiate the claim of the petitioner, reliance has been placed in Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and another reported in (1988) 1 Supreme Court Cases 530, Khemchand Om Prakash Sharma vs. State of Gujrat & another reported in (2000) 3 Supreme Court Cases 753 and Yamanaji H. Jadhav vs. Nirmala reported in (2002) 2 Supreme Court Cases 637 as well as pronouncements ::: Downloaded on - 20/06/2022 20:02:57 :::CIS 7 of High Court of Jharkhand in Bula Roy vs The State of Jharkhand & Anr. in Cr.MP Nmo. 5024 of 2001 and pronouncement of High Court of Judicature at Allahabad, .
Lucknow Bench , titled as Kiran Dhar vs. Alok Berman in Cr. Revision No. 623 of 2007.
16. Claim of the petitioner is that respondent No.1 is not his legally wedded wife and respondent No.2 is not his daughter and, therefore, they are not entitled for maintenance from him.
17. Respondent No.1 is claiming herself to be wife of petitioner and respondent No.2 as his daughter. In reply to the present petition, respondents have offered DNA Profiling Test of the daughter to establish that petitioner is father of respondent No.2 to which petitioner has not responded.
18. In response to original petition filed under Section 125 Cr.P.C as well as petition filed for enhancement under Section 127 Cr.P.C, no such plea was ever raised by the petitioner. This issue is being raised by him in Execution Petition with prayer to cancel the order passed in main petition and petition for enhancement.
19. Judicial Magistrate First Class in Execution proceedings is acting as an Executing Court and Executing Court cannot go beyond the decree or order sought to be executed in ::: Downloaded on - 20/06/2022 20:02:57 :::CIS 8 Execution Petition. Executing Court has no jurisdiction to alter, vary, modify or cancel the order/decree sought to be executed.
Therefore, objections filed on behalf of petitioner in Execution .
Petition preferred by respondents with prayer to cancel the award of maintenance and enhancement thereof was not maintainable and, thus, present petition against dismissal of such objection is also not maintainable.
20. Petitioner has to avail legal remedy available to him to file an appropriate petition for alteration, variation or modification of the order(s) if so advised under appropriate provisions of law before the appropriate Court. At present, there are orders in existence, passed on the basis of his admission regarding relationship with respondents No. 1 and 2, awarding maintenance and enhancement thereof and during existence of such orders, Execution Petition cannot be stalled or rejected for the objections filed therein praying for cancellation of order of awarding and enhancing the maintenance.
21. The issues with respect to existence of relationship of petitioner and respondent No.1 or status of their admitted marriage or status of respondent No.1 of legally wedded wife or objections or plea of the petitioner that such marriage was void ab initio are not to be adjudicated in the Execution Petition but in ::: Downloaded on - 20/06/2022 20:02:57 :::CIS 9 appropriate proceedings as available under law. Therefore, Case Law cited on behalf of petitioner referred supra is of no help to the petitioner. Executing Court is bound to execute the order/decree .
unless or untill it is set aside by Competent Court of Law in appropriate legal and valid proceedings in accordance with law.
22. In view of above discussion, I do not find any illegality, irregularity, infirmity or perversity in the impugned order passed by the Executing Court. Accordingly, the same is upheld.
With aforesaid observation, present petition is dismissed being devoid of merits, so also pending application(s), if any.
(Vivek Singh Thakur), th 20 June, 2022 Judge.
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