Decided on February 05,1979



M.K.SHAH - (1.) This revision application is directed against the order passed by the learned Judicial Magistrate First class Dhrangadhra on 3 on Ex. 24 which was an application given by the opponent husband in maintenance proceedings instituted by the wife for herself and the minor sons. The learned Magistrate by the order passed below Ex. 24 allowed the said application on the ground that there were substantial issues in the matter arising between the parties due to the registered divorce deed and he therefore dismissed the wifes maintenance application being Miscellaneous Criminal Application No. 5 of 1977 directing her to approach the civil court. ... ... ...
(2.) While the proceedings were pending on 22-5-1978 the husband gave the said application Ex. 24 inter alia contending that at the time when the divorce was obtained by the said deed of divorce the wife had no right of claiming maintenance and the question of neglect or refusal on the part of the husband to maintain would not arise. With regard to the maintenance of the first child Indravadan it was contended that in the deed itself the wife had taken over the responsibility of his maintenance and custody and the husband was not liable for the same as specifically stated therein and she had never asked for any maintenance from 1968 to 1976 thus implementing the deed of divorce add the question of neglect or refusal with regard to maintenance of the said son also did not arise With regard to the second son as the same was born after the divorce the question of his paternity was of importance. The agreement contained in the deed of divorce was of civil nature. Nothing was payable by each party to the other and there was no question of neglect or refusal. Several questions of civil nature would therefore arise with regard to the effect of the deed of divorce viz. with regard to the paternity of the second child with regard to the question as to whether the wife can make an application after a lapse of such long time after the new Code of Criminal procedure came into force as to what was the effect of the position that in the written deed of divorce there was no mention that the wife had conceived. In this view of the matter it was contended that the issues which arise would be of civil nature and the petitioner-wife would have remedy in civil court and the criminal court had a no jurisdiction.
(3.) The learned Magistrate after hearing both the parties came to the conclusion that there were substantial questions of civil nature arising in the proceedings before him and the learned Magistrate allowed the husbands application Ex. 24 and dismissed the wifes maintenance application being Criminal Miscellaneous Application No. 5 of 1977 directing her to go to the civil court. Aggrieved by this order the wife has filed this revision application.;

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