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Revision application allowed in Section 125 Cr.P.C

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 43

Civil Misc. Writ Petition No. 4501 of 2006

Rajesh Saxena
Vs.
State of U.P. and another

Hon’ble Mukteshwar Prasad, J.

Heard learned counsel for the petitioner, learned A.G.A. and perused the impugned order dated 22.12.2005 passed by learned Judicial Magistrate and order dated 7.3.2006 passed by In charge Sessions Judge dismissing criminal revision summarily.

It appears that opposite party no. 2 filed an application under Section 125 Cr.P.C. claiming maintenance from her husband.

Admittedly, opposite party no. 2 has closed her evidence and husband has also examined four witnesses in support of his case. The husband has raised a plea that opposite party no. 2 is not a normal woman but she comes in the category of eunuch and he wants to prove this fact before the court below.

The petitioner examined himself as D.W. 5 but his examination-in-chief could not be concluded by his counsel on account of paucity of time on 8.12.2005 and on account of death of a Senior counsel Sri Laxmi Narain Tripathi on 16.12.2005. Learned counsel appearing for the petitioner moved an application in the court below for adjournment of the case on 22.12.2005 which was strongly opposed by the learned counsel for wife. This application for adjournment was rejected by the Judicial Magistrate. The In charge Sessions Judge rejected summarily the revision filed by the husband against the aforesaid order.

The main contention of petitioner’s learned counsel is that unless a reasonable opportunity to lead evidence is given to husband he would suffer irreparable injury and would not succeed in showing that the lady is eunuch. It is true that the application is pending in the court below since 1992 but the delay in disposal does not mean that the parties should be deprived of their right to adduce their evidence.

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Considering all facts and circumstances of the case as well as in the interest of justice, the petition is allowed and the impugned orders dated 22.12.2005 passed by Judicial Magistrate and the order dated 7.3.2006 passed by In charge Sessions Judge rejecting the revision are set aside. The learned Judicial Magistrate is directed to provide an opportunity to the petitioner to examine himself and after his complete examination-in-chief, he would be cross-examined by the learned counsel for the wife. The learned Judicial Magistrate is further required to provide an opportunity to the parties to file documentary evidence/medical evidence, if any, and then after hearing arguments advanced on their behalf shall decide the case finally in accordance with law. It is however made clear that the petitioner shall not seek unnecessary adjournments on this ground and the court below will ensure early disposal of the case.

13.4.2006

OP/4501/06

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