A. Joseph Fernando vs Maria Navis and others

Maheswaran, J.—This is a petition under S. 482, Crl.P.C. to set aside the order in M.C. 236 of 1982, on the file of the Chief Judicial Magistrate Tirunelveli, at confirmed in Crl. R.C. 6 of 1985 by the Second Additional Sessions fudge, Tirunelveli.

The wife filed a petition before the Chief Judicial Magistrate, Tirunelveli, under S. 125 Crl. P. C. , for maintenance. The petition is filed on the ground that the husband has neglected the wife and here two children born of the marriage between her and her husband. The trial court, after a careful analysis of the evidence, adduced before it, found that the wife has got enough meant to maintain herself and negatived the relief of maintenance for the wife but granted maintenance for the children of the petitioner at the rate of Rs. 100 per month for each of the two children. The revisional court confirmed that order and dismissed the revision filed by the petitioner.

The husband petitioner has now invoked the inherent jurisdiction of this Court under S. 482, Crl.P.C., Inter alia contending that in a civil proceeding filed by the wife, a sum of Rs. 666 was ordered to be recovered from out of his salary, that he is not in a position to pay the amount ordered by the criminal court in addition the amount ordered by the civil Court and that he cannot be compelled to pay the maintenance in the criminal case. His next contention is, that he cannot be asked to pay maintenance twice, one under the civil Court''s decree and another by the criminal court. Learned Counsel for the petitioner-husband has produced some xerox copies of the ledger copy and certificate of recovery to show that some salary of the petitioner was attached by his employer and the same was remitted into court.

It has to be noted that the civil suit filled by the wife, viz., O.S. 1234 Of 1983, on the file of the Additional Subordinate Judge Tirunelveli, is for the following remedies--(1) for a direction to the defendant-husband to-pay a sum of Rs. 18,000 towards past maintenance for petitioners 2 and 3--plaintiffs and 2 and 3 children; (ii) directing the defendant to pay a sum of Rs. 500 per month to the wife and Rs. 230 per month to each of the two children towards maintenance; (iii) directing the defendant to pay Rs. 10,300 toward cash dowry received by him; (iv) directing the defendant to pay Rs. 10,000, towards the value of the jewels mentioned in schedule IV; and (v) directing the defendant to pay Rs. 6,880 being, the amount spent for redeeming the jewels. It is, therefore, manifest, that the suit was laid by the wife not only for maintenance but for other reliefs also. It is obvious that taking into consideration the various reliefs claimed in the plaint, attachment before judgment was ordered. It has to be noted that the maintenance proceedings under S. 125, Crl. P.C., was initiated earlier though the order in the civil suit was passed earlier. In the decision reported in Govindasami v. Muthulakshmi 1966 M.L.J. Cri. 179, a learned single Judge of this Court took the view that there is nothing in S. 488 Crl. P.C. 1898 (S. 125 of the new Code) which bars the remedy under it because of the existence of a decree of a civil Court for maintenance. To the same effect is the decision reported in Linga Goundan v. Raman 1977 L.W. (Crl.) 188 : 1977 M.L.J. Crl. 453. In that decision, the learned single Judge held that S. 125, Crl. P.C., does not lay down that the existence of a decree for maintenance passed by a civil Court will bar the jurisdiction, of a Magistrate to entertain a petition under S. 125, Crl. P.C., for maintenance. The learned Judge also points out that the question whether a decree of a civil Court would bar an action under S. 488, Crl. P.C., 1898 would depend upon the facts and circumstances of each case. The learned Judge further points out that there is nothing in S. 127, Crl. P.C., to show that if there has been an earlier decree of a civil Court, a Magistrate must confine his award only to the quantum fixed by the civil Court and if such a construction would be put, it would undoubtedly result in hardship to destitute wives, children and parents. In such circumstances, it is manifest that a petition under S. 125, Crl. P.C., is perfectly maintainable notwithstanding a civil Court''s order for maintenance. Therefore, the criminal proceedings cannot be quashed. The petition is dismissed.