IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M M O No. 54 of 2008. Date of Decision: 29. 10. 2008 _______________________________________________________ Pawan Kumar ….Petitioner Versus Smt.Saina Kumari & another … Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting?.No For the Petitioner : Mr. G.D.Sharma, Advocate. For the respondents : Mr.Atul Jhingan, Advocate, Surinder Singh, J. (oral) The present petition under section 482 Cr.P.C. read with Article 227 of the Constitution of India has been preferred for setting aside the order dated 15.2.2008 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr (H.P.) in Criminal Revision No. 13 of 2007, whereby the amount of maintenance awarded to the child-respondent No.2 was enhanced from Rs.1,000/- to Rs.2,000/-. The facts giving rise to the present petition are that respondent No.1 Smt. Saina Kumari claimed herself to be the wife of the petitioner. Precisely she alleged that prior to ______________________________________________ Whether the reporters of local papers may be allowed to see the judgment?yes - 2 - the marriage she was raped by the petitioner herein on 15.3.2003, thereafter he threatened her not to disclose about the sexual relations to any one and he assured to marry her. He went on ravishing her many times thereafter, as a result of which she became pregnant and gave birth to a female child and she lived with the petitioner as his wife with effect from first week of August, 2003. Father of the petitioner also accepted her as his daughter-in-law and a temple marriage was performed on 3.10.2005 at ‘Kapuri Temple’, Rampur Bushahr. The petitioner also developed relations with one Kokila. Respondent No.1 insisted upon the petitioner to get her name entered in the Panchayat record, he also executed the affidavit Ex.PA. A case of rape was registered against the petitioner, he was tried for the offence, under section 376 of the Indian Penal Code, in the Juvenile Court at Shimla and even in those proceedings, he offered to take the respondent No.1 to his village. Thereafter, respondent No.1 is alleged to have joined the company of the petitioner on 5.4.2005 at Kashapat where the petitioner was living in his ancestral house. After acquittal of the petitioner, father of the petitioner asked respondent NO.1 to re-marry with his cousin-brother Phoola, as the petitioner had - 3 - married to Kokila who had given birth to a male child in September,2005. The petitioner abandoned the respondents and started residing in village Neol. No maintenance was provided to them but she was pressurized to become the wife of Phoola. The petitioner wrote many letters and executed an affidavit, which were taken into possession by the police in Case FIR No.144 under section 376 IPC. Since, she was not provided necessities of life, as such the petition was filed for maintenance, which was resisted and contested by the petitioner-herein. He denied the respondent No.1 to be his legally wedded wife. He also denied the paternity of respondent No.2. He further alleged that after birth of respondent No.2, family of the respondents was boycotted by the villagers as the birth of respondent No.2 before the marriage was not accepted in the society. Thus, to save the dignity of the family, she cooked up the false story of rape against him. After complete trial, both the respondents were awarded maintenance at the rate of Rs.1,000/- each per month, by the learned trial court which was assailed by the petitioner before the learned Sessions Judge. After hearing the learned counsel for the parties, the learned Sessions Judge, declined maintenance to - 4 - respondent No.1 but enhanced maintenance amount from Rs.1,000/- to Rs.2,000/- per month to respondent No.2. The respondent No.1 did not challenge the order of Sessions Judge against her but the petitioner assailed the order of enhancement being without any reasons, however, he agreed to pay Rs.1,000/- per month to respondent No.2 as ordered by the learned trial court. Learned counsel for the petitioner argued that the impugned order of enhancement of amount is without reason, thus unsustainable. He also argued that there was no evidence on record to justify the enhancement. Contra, learned counsel for the respondents has submitted that this court has no jurisdiction to entertain the petition, under section 482 Cr.P.C. because of specific bar under section 397(3) Cr.P.C. To buttress his arguments, he has relied upon Dharampal and others versus Ramshri (Smt) and others (1993)1 Supreme Court Cases 435, Bakulabai and another versus Grangaram and another (1988) 1 Supreme Court Cases 537; Rajan Kumar Machananda versus State of Karnataka 1990 (Supp) Supreme Court Cases 132 and Deepti alias Arati Rai versus Akhil Rai and others (1995) 5 Supreme Court Cases 751. - 5 - After giving thoughtful consideration to the rival contentions of the parties and after going through the case law cited above, I am of the view that the petition, under Section 482 Cr.P.C. is quite different from the provisions of Section 397 of the Code. It deals with the different situations. A petition preferred under Section 482 Cr.P.C. is not a second revision. Otherwise also in the instant case, the order of maintenance qua respondent No.2 was upheld but enhancement was made in monthly maintenance amount without assigning any reason, which is indefensible thus to prevent the abuse of process of law, this court can interfere in the impugned order while exercising its powers under Section 482 Cr.P.C. read with Article 227 of the Constitution. Therefore, the impugned order passed by the learned Sessions Judge, to the extent of enhancing the amount of maintenance from Rs.1,000/- per month to Rs.2,000/- per month is set aside. The amount, which in favour of respondent No.2, stands deposited by the petitioner shall be adjusted towards the - 6 - maintenance of respondent No.2 at the rate of Rs.1,000/- per month, as ordered by the learned trial court. However, respondent No.2 is at liberty to move an application, under section 127 of the Code of Criminal Procedure, if permissible for seeking enhancement of the maintenance amount, which shall be decided by the learned trial court, after giving due opportunity to the petitioner in accordance with law. Accordingly, the petition is disposed of. October 29,2008 (Surinder Singh),J. (D)