Himachal Pradesh High Court
Ram Gopal vs Vidya Devi on 13 June, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MMO No. 550 of 2018
Date of Decision 13th June, 2019
_________________________________________________________________
Ram Gopal ...Petitioner
Versus
Vidya Devi
Coram
r to .... Respondent
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting? Yes
______________________________________________________________
For the Petitioner: Mr.Y.K. Thakur Advocate with
Mr.Deepak Advocate.
For the Respondent: Mr. B.L. Soni Advocate with
Mr.Ashish Kumar, Advocate.
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
Present petition has been filed seeking the following relief:-
"1. Quash the (Annexure P-1) dated 1.11.2018 passed by the learned District and Sessions Judge, Sirmaur at Nahan, ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 2 whereby the maintenance order at the enhanced rate of Rs.5000/- (Annexure P-2) .
passed on 6.6.2018 by learned Chief Judicial Magistrate, Sirmaur at Nahan in case bearing No. 335/4 of 2013 titled as Vidya Devi vs. Ram Gopal" which stands upheld; and also (Annexure P-2) passed by the learned CJM, Sirmaur at Nahan whereby the maintenance order dated 6.6.2018 was passed against the petitioner (respondent below):
r By taking into account, consideration the DNA Profile Test Report dated 26.12.2016 (Annexure P-4) and judgment and decree dated 31.8.2017 rendered in a Civil Suit beairng No. 134/1 of 2009 titled as Ram Gopal vs. Vidya Devi and others (Annexure P-5 and P-5(colly) Or In the alternative, with a further prayer to issue directions to the learned CJM Sirmaur at Naha to allow the petitioner (respondent below) to place the DNA profile test report dated 26.12.2016 (Annexure P-4) and judgment and decree dated 31.8.2017 rendered in a Civil Suit No. ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 3 134/1 of 2009 titled as Ram Gopal vs. Vidya Devi and others (Annexure P-5 and P-
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5(Colly) on record and consider the case in the light of the same and decide in accordance with law.
2 Vide order dated 6.6.2018, passed in application/petition filed under Section 127 Cr.P.C. by respondent/wife, learned Chief Judicial Magistrate has enhanced the maintenance allowance in favour of the respondent and has awarded Rs.5000/- per month maintenance payable to her.
3 Revision petition preferred by the petitioner under Section 397 Cr.P.C. stands dismissed by learned Sessions Judge vide impugned order dated 1.11.2018.
4 The only ground taken for filing the present petition is that there is a DNA Profiling Test Report indicating that the petitioner herein is not biological father of children, claimed to have born out of wedlock of petitioner and respondent, and the said DNA report, though has been placed on record as a piece of evidence in Civil Suit No. ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 4 134/1 of 2009 titled as Ram Gopal vs. Vidya Devi, which stands decided on 31.8.2017, but could not be placed on .
record before learned Chief Judicial Magistrate or learned Sessions Judge during adjudication of claim of enhancement of maintenance allowance put forth by the respondent/wife.
It is further case of petitioner that after dismissal of aforesaid suit, the petitioner has preferred a Civil Appeal No. 100 of 2017 titled Ram Gopal vs. Vidya Devi, which is pending adjudication before learned Additional District Judge, Sirmaur at Nahan.
5. It is also case of the petitioner that DNA Profiling Test Report, received from the H.P. State Forensic Science Laboratory, Junga, is establishing that respondent/wife is living in adultery and therefore, the impugned order dated 6.6.2018 passed by learned Chief Judicial Magistrate enhancing the amount of maintenance and also order dated 1.11.2018 passed by learned Sessions Judge, affirming the said enhancement, deserve to be quashed after taking into consideration the DNA Profiling Test Report.
::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 56 It is the case of the petitioner that at the time of adjudication of proceedings qua awarding maintenance or .
enhancing the maintenance allowance, the DNA report could not be produced and now the said order of enhancing maintenance passed by trial Court stands confirmed by learned Sessions Judge and therefore, the petitioner has no remedy except filing the present petition for redressal of his grievance based on DNA report.
7 Learned counsel for the petitioner has also contended that enhancement has been awarded by learned Magistrate from the date of filing of petition, which has been affirmed by learned Sessions Judge, by ignoring the fact that there is no delay in adjudication of said application on the part of petitioner, rather proceedings were delayed on account of conduct of respondent/wife.
8 Learned counsel for the respondent submits that merely on the basis of DNA Profiling Test Report being relied upon by the petitioner, it cannot be said that it has been established on record conclusively that the respondent/wife ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 6 is living in adultery and the petitioner has to prove not only the DNA Profiling Test Report in appropriate proceedings but .
also contents and conclusion thereof in accordance with law so as to establish his plea so as to repel the claim of respondent. It is also submitted that as the civil suit filed by petitioner has been dismissed, production of DNA report therein is of no help to the petitioner.
9 Learned counsel for the respondent has controverted the plea raised on behalf of the petitioner stating that in any case, the respondent was entitled for enhancement of maintenance from the date of filing of petition, and thus it hardly matters that the petition has been decided within one year or thereafter.
10 I find that the contention of the petitioner that he has no other remedy except filing present petition for addressing issue raised in present petition, is misconceived.
Chapter IX of Criminal Procedure Code deals with maintenance of wives, children and parents and it provides ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 7 a complete procedure for the disputes relating to such maintenance.
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11. Section 125(4) of Cr.P.C. provides that no wife shall be entitled to receive an allowance for maintenance or interim maintenance and expenses of litigation, as the case may be, from her husband under Section 125 Cr.P.C., if she is living in adultery. Section 125(5) Cr.P.C. provides the efficacious and alternative statutory remedy to the petitioner, which reads as under:-
"125(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
12 Further, Section 127(2) Cr.P.C. also empowers the Magistrate to cancel or vary any order made under Section 125 Cr.P.C. when it appears to the Magistrate that it is ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 8 necessary to do so in consequence of any decision of a competent Civil Court, which reads as under:-
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"127(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly."
13. Petitioner is relying upon a report to set aside impugned orders passed by learned Magistrate and learned Sessions Judge, which was never placed before them. As noticed above, law provides a remedy to the petitioner to approach the trial Magistrate with such report, which has not been availed by him.
14 As discussed supra, particularly, in view of specific provision of Sections 125(5) and 127(2) Cr.P.C., providing statutory alternative efficacious remedy to the petitioner, petitioner is not entitled for invoking jurisdiction of this Court either under Section 482 Cr.P.C. or Article 227 of Constitution of India and accordingly, it is dismissed with ::: Downloaded on - 28/09/2019 23:25:59 :::HCHP 9 liberty to the petitioner to have recourse to appropriate remedy as available to him under law. Needless to say that .
claim and counter claim of the parties, including the evidentiary value of the DNA Profiling Test Report, have not been adjudicated on merits by this Court and all such contentions available to the parties are to be adjudicated by the competent Court in accordance with law as and when occasion arises to do so. Petition stands disposed of including all pending miscellaneous application(s), if any.
June 13, 2019 (Vivek Singh Thakur)
(ms) Judge
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