Devaki Antharjanam Radhamoni Devi and another vs Easwaran Potti Narayanan Potti

U.L. Bhat, J.—Admittedly first revision petitioner is the mother and the respondent father of the second revision petitioner (daughter). In M.C. No.41/80 an order was passed u/s 125 of the Code of Criminal Procedure (for short ''the Code'') treating the revision petitioners, as the lawfully wedded wife and the daughter of the respondent and directing the latter to pay maintenance to them at the rate of Rs 80/- per month and Rs 70/- per month respectively. Subsequently the revision petitioners filed M. C. No. 8 of 1985 u/s 127(1) of the Code seeking enhancement of the rate of maintenance on the ground of change of circumstances. Petition was opposed by the respondent, who filed Crl. M. P No. 4007/85 u/s 127(2) of the Code, alleging that a competent, civil, court in O. S. No. 203/79 (Sub Court, Trivandrum) has held that the first revision petitioner is not the lawfully wedded wife and the second revision petitioner is not the legitimate child of the respondent and therefore, the earlier order u/s 125 has to be cancelled, Learned Magistrate partly upheld the contention of the respondent, enhanced the maintenance payable to the daughter to Rs 150/- per month and cancelled the earlier maintenance order passed in favour of the first revision petitioner. This order is now challenged. M.C.No 41/80 was filed by the revision petitioners (mother and daughter) specifically alleging their status as the lawfully wedded wife and legitimate daughter of the respondent. Ext D2, certified copy of the written statement filed in that case by the present respondent admitted their status. Petitioners in M. C. No 41/80 alleged neglect and the wife further alleged that subsequently the husband entered into a marriage arrangement with one Saraswathi Antharjanam Husband further made an offer to maintain her if she lived with him. Ext P1 order passed in M. C. 41/80 shows that the court rejected the offer as not bonafide particularly in the light of the earlier notice issued by him and the registered marriage agreement entered into by him with Saraswathi Antharjanam. Copy of that notice is produced and marked as Ext D3 in this case.

Revision petitioners herein and son of the first revision petitioner filed a suit, O S. No 203 of 1979, seeking partition of the family properties into seven shares and delivery of one such share to the son alleging that the respondent executed a gift deed in favour of the son in regard to his 1/7th share. Respondent herein was the third defendant in that suit Copy of the judgment in that suit produced and marked as Ext. P1 in Crl. M P No 4007/85 shows that the third defendant filed written statement admitting all the averments in the plaint, but the other members of the family, namely, defendants 4 to 8 and a stranger purchaser, namely, 13th defendant, contended, inter alia, that before the respondent married the first revision petitioner he had married another lady by name Padmavathy Antharjanam, that marriage was subsisting and, therefore, the marriage with the first revision petitioner was not lawful. On that ground they challenged the legal status of the son and the first revision petitioner. The civil court accepted the contention and dismissed the suit. According to the respondent, in consequence of this decision of the competent civil court the earlier order u/s 125 of the Code has to be cancelled. This contention found favour with the learned Magistrate.

Sub-section (2) of Section 127 of the Code reads thus:

Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made u/s 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

The rationale of the provision appears to be that the order of the Magistrate is to be brought in conformity with the decision of the civil court, This certainly would not mean that merely because there is a decision of a competent civil court, Magistrate is bound to act on it and either cancel the earlier order or vary the same. The use of the word "shall" may at first blush indicate that it is obligatory on the part of rite Magistrate to cancel or vary the earlier order; however, that it is not so obligatory is clear from the provision that cancellation or variation is to be made only if it "appears to the Magistrate" that it should be done. The order contemplated in Sub-section (2) of section 27 is to be made only in the judicial discretion of the Magistrate. The Magistrate has to take into consideration all the attendant circumstances before holding that in consequence of a civil court decree, the earlier order of maintenance is to be cancelled or varied. The decree must be by a competent civil court, between the parties and on a matter which has direct bearing on the right. of the wife to claim maintenance and duty of the husband to pay maintenance. The Magistrate must be satisfied that the husband obtained the decree bonafide and not merely 10 circumvent the earlier order of maintenance. See Haji Hussain Sulaiman Hodekar v: Rukhya Bai (1962 KLJ 783) and Velayudhan v. Sukumari (1978 KLT 301). The decision of the civil court must have been given inter-parties and on an issue raised between the parties and not on an issue raised between one of the parties to Section 125 proceedings and a third party or between strangers. If there is a relevant decision of a competent civil court, given on contest between the parties to the earlier maintenance order, the Magistrate has to consider the decision, the bonafides of the person in whose favour the decision, has been given and all other relevant and attendant circumstances and exercise his judicial jurisdiction u/s 127 (2).

It has to be appreciated that the civil suit was not filed by the first revision petitioner against her husband seeking any particular or specific relief against the husband; nor was the civil suit filed by the husband specifically challenging her legal status or that of her children or specifically challenging the validity of the maintenance order, assuming that the validity could be so challenged. It was a suit filed by the mother and children seeking relief in favour of the son only. The suit was not contested by the present respondent. It was contested by the other members of the family and a stranger on whose plea, no doubt, a specific issue was raised and answered against the plaintiffs. In other words, finding of the civil court was not sought by the respondent against, the revision petitioners. The finding was sought by persons other than the respondent. I do not think, that can have any effect on the earlier order of the Magistrate.

Let us now examine the other circumstances alleged in the reply notice. Even in the earlier maintenance case, respondent conceded the legal status of the revision petitioners as his lawfully wedded wife-and legitimate daughter. Even before the maintenance case he sent Ext D3 notice to the first revision petitioner seeking divorce. When he was examined in the earlier maintenance case, as could be seen from Ext D1 copy of his deposition in the civil suit, he took the stand in favour of the legitimate status of the revision petitioners. Even in his deposition in the present proceedings when examined as CPW-1, he merely referred to the findings of the civil court and staled that Padmavathy Antharjanam was his first wife and the first revision petitioner was his second wife. He did not even state that the alleged marriage between him and Padmavathy Antharjanam was performed in accordance with the necessary religious ceremonies or that it was a lawful marriage. These circumstances should have been taken into consideration by learned Magistrate along with the finding of the civil court in the light of the background of that litigation. Learned Magistrate came to a conclusion by ignoring relevant material and not fully appreciating the scope of his jurisdiction under Sub-section (2) of Section 127 of the Code. In these circumstances, I set aside the impugned order in so far as it relates to the cancellation of the earlier maintenance order in favour of the first revision petitioner and rejects her claim for enhancement. Crl. M. P. No 4007/85 is dismissed The order in M. C. No 8/85 is partly set aside and that case is remitted so the lower court for considering the claim of the first revision petitioner for an order u/s 127 (1) on merits. The revision petition is thus allowed.