Deoki Nandan - (1.) THE second opposite party Smt. Vimilesh Kumari is the wife of the applicant in this application under section 482 of the CrPC. THE prayer made by the applicant is that the proceedings in the court of the S. D. M. Sadar, Agra and the order dated 28th October, 1976, passed there in may be quashed.
(2.) IT appears, from the reading of the said order which is annexure 'A' to the affidavit of the applicant filed in support of the application, that the S. D. M. had by an order dated 6th June, 1973, ordered payment of maintenance at the rate of Rs. 100/- per month by the applicant-husband to the opposite party-wife from the date of the original application in that court. That order appears to have been passed under section 488 of the CrPC 1898. The respondents revision against the same was dismissed where upon he applied to this court for revision and by an interim order dated 12th September, 1974, this court suspended the payment of maintenance ordered by the learned Magistrate provided the applicant-husband paid 50 percent of the maintenance allowance at the close of each month and also paid the entire arrears upto the date of the interim order. In case of defaul, the stay order was to stand automatically vacated. The applicant not having complied with the conditions of the interim order, the second opposite party-wife applied to the S. D. M. on 1st January, 1975, for recovery of the sum of Rs. 6,340/- as the arrears of maintenance for the period 28th August, 1969 to the 10th December, 1974 and a warrant for recovery of that amount was issued by the Magistrate on 3rd January, 1975. The warrant was returned by the police with the report dated 21st January, 1975, asking for the permanent address of the applicant, whereupon the second opposite party made another application dated 2nd March, 1975, for a fresh warrant of recovery which was also returned with the police report that the applicant who is an advocate was living in house No. 78 Ashok Nagar, but had left that place along with his new wife Smt. Deo Kunwar and was living in the house of Sri Chandra Datta Sharma in plot No. D-112, house No. 529, Lal Kothi, Babu Nagar, P. S. Adarsh Nagar, Jaipur. On this report, the second opposite party made an application on 10th April, 1975, for recovery by the arrest of the applicant. On this, the applicant filed an objection in the court of S. D. M. on 16th April, 1975, to the effect that the court had no jurisdiction to take proceeding for recovery under the CrPC, 1973. That objection was rejected on 21st April, 1975, and it was held that, that court had jurisdiction to proceed with the recovery. On this, the applicant filed an application dated 24th April, 1975, praying for stay of recovery proceeding and by another application, he alleged that the second opposite party was leading a life of adultery. On this application, the court of Sub Divisional Magistrate stayed the recovery proceedings by an order dated 18th October, 1975, and directed that evidence may be led in support of the allegation that the second opposite, party was living in adultery. The second opposite party then applied on 3rd December, 1975, in the court of the Sub-Divisional Magistrate for proceeding with the recovery on the ground that the applicant had not complied with the orders of this court. The impugned order dated 28th October, 1976, further shows that the first question which arose before the learned Magistrate was about the date from which the cancellation of the maintenance order on the ground that the wife was living in adultery could be deemed effective in case it was so cancelled and on this question, the attention of the learned Magistrate having been drawn to a ruling reported in Smt. Kalyanl Devi v. Nirmal Kumar Panda, 1957 Cr. L. J. 177 he found that the maintenance allowance was payable upto the date on which the maintenance order is cancelled on the ground that the wife is living in adultery The learned Magistrate held that in view of the said ruling, there was no justification for staying the recovery proceeding till such time as the maintenance order was actually cancelled. He accordingly ordered that the recovery should proceed tart at the same time permitted the parties to lead evidence on the question whether the wife was living in adultery. The aforesaid order of the learned Magistrate was upheld by the court of Sessions Judge, Agra, by an order dated 25th February, 1977, dismissing the applicants' revision there from. The applicant has in his application relied on certain orders passed in between by the court of the S.D.M. for regulating the said proceedings. The second opposite party has, on the other hand, contended in her counter affidavit that the order passed by the S. D. M. on 21st April, 1975, rejecting the applicants' contention that, that court had no jurisdiction to proceed with the recovery after the coming into force of the CrPC, 1973, had been allowed by the applicant to have become final and that, therefore, it is not open to the applicant to now contend in the course of very same proceeding that the court of S. D. M. has no jurisdiction to proceed with the recovery. The question of jurisdiction, however, goes to the root of the matter and whether the question about S. D. M. jurisdiction could be raked up before him again, the matter having been brought before this court, it appears to me to be the duty of this court to prohibit the taking of further proceedings in the court of S. D. M. for recovery of the maintenance under its order dated 6th January, 1973, under section 488 of the CrPC, 1898, in case it is found that under the CrPC, 1973, the jurisdiction to proceed with the recovery, vests in the court of the Judicial Magistrate concerned and is no longer exercisable by the S. D. M. who is an Executive Magistrate.
(3.) NOW, although when the count of the learned S. D. M. held on the 21st April, 1975, that it had jurisdiction to proceed with the recovery, there was some doubt about the correct interpretation of the relevant provisions of the CrPC, 1973, the problem seems to have been resolved by now and it can be said with certainty that jurisdiction to recover the amount of maintenance under an order passed by a S. D. M. under section 488 CrPC vests in the court of Judicial Magistrate concerned after the enforcement of the CrPC, 1973. It must, therefore, be held that the aforesaid proceedings for recovery taken in the court of the S. D. M., Sadar Agra, are without jurisdiction but this does not necessarily mean that the proceedings for recovery must be quashed, for by doing so, the recovery of the amount of maintenance in arrears for a period of more than one year preceding the date of the application for recovery will become time-barred and this result would follow for no fault of the send opposite party who has been bona- fide and with due diligence pursuing her application for recovery of the amount of maintenance in arrears ever since she made her application before the S. D. M. The proper order for this court to pass, therefore, appears to be to transfer the said recovery proceedings from the court of S. D. M., Sadar, Agra, to the court of the Judicial Magistrate having jurisdiction to proceed with the same. This court can make that order suo moto on its own initiative in exercise of its powers under section 407 (2) of the CrPC, 1973, When I put this position before the learned counsel for the applicant, he agreed with me after consulting the applicant who himself happens to an advocate that this would be an eminently a proper order to pass. However, before making the order, I must take note of certain fresh developments having a bearing on the same. One such fact is that the applicant has on his own admission contained in paragraph 16 of his rejoinder-affidavit, dated 16th August, 1977, moved an application under section 125 (5)/127 of the CrPC, equivalenr to section 489 of the CrPC, 1898, in the court of Munsif- Magistrate 1st class, at Agra. A copy of that application is annexure 'A' to the said rejoinder-affidavit. The application is dated 12th February, 1975, and was registered as criminal case no. 75 of 1975 in the court of the Munsif-Magistrate 1st Class at Agra. The application prays for the cancellation of the maintenance order on the ground that the second opposite party is living in adultery. Another fact is that an order passad by Honourable V. N. Varma, J. on 23rd January, 1978, in Criminal Revision No. 145 of 1974, which appears to have arisen from the order of the Sessions Judge, Agra, dated 6th November, 1976, in criminal revision No. 33 of 1973. By that order Honourable Varma, J. directed that the learned Magistrate should give a finding on the question as to what is the income of the applicant as a lawyer and that the finding should be submitted within four months from the date of that order. The copy of that order is annexed to the application which appears to have been presented before this court on 20th February, 1978, and had been made a part of the record of this Criminal Misc. Application No. 1928 of 1977. It was prayed by that application that in addition to the issue already remitted to the Magistrate's court for giving a finding on the income of the applicant as a lawyer, a further issue should be remitted to the Magistrates' court for deciding the question whether the second opposite party is disentitled to maintenance in view of her living in adultery. On this application, Honourable Varma, J. was pleased to direct, by an order dated 2nd March, 1978, that the Magistrate should decide this matter also within two months from the date of his order. This application was, however, dismissed for default in appearance by the applicant, on 17th October, 1978, when the matter was taken up for the hearing before Honourable P. N. Bakshi, J. but the order of dismissal was set aside and the application was restored by an order dated 5th December, 1978, on a miscellaneous application 7284 of 1978 dated 16th November, 1978, which also forms part of the record of this criminal application No. 1828 of 1978. The matter was placed again before Honourable V. N. Varma, J. on 9th January, 1979, when he directed that a letter be sent to the Magistrate inquiring from him as to why he did not comply with the courts' order dated 2nd March, 1978, and requiring the Magistrate to submit his report within 15 days from that day. A letter dated 20th January, 1979, was thereafter, received from the S. D. M. Sadar, Agra, which showed that the recovery proceedings which had given rise to the present case were no longer pending before the S. D. M. but the record thereof had keen sent to the court of Chief Judicial Magistrate, Agra, under an order dated 13th May, 1978, of the ADM (Executive), Agra and the CJM, Agra had thereafter, assigned the case to Sri Lajja Ram, Judicial Magistrate, by his order dated 16th May, 1978. On seeing this letter Honourable V. N. Varma, J. ordered on 5th March, 1979, that the case may be listed after the finding of the CJM, Agra, is received and that in the meanwhile a letter be sent to the CJM, Agra, to send his finding to this court as expeditiously as possible. This case, was, thereafter listed before me for hearing with the office report dated 10th August, 1979, that the finding from the CJM has not been received as yet;