G. Ramanathan vs Revathy

David Annoussamy, J.

This is a petition by the husband under S. 482 of the Cr.P.C. to quash the proceedings for maintenance instituted by the wife respondent u/s

125 Cr.P.C.

The case put forth by the husband is that the petition was filed before the Magistrate''s Court three years after the alleged desertion and

therefore there was no emergency as alleged in order to invoke the quick remedy contemplated u/s 125 Cr.P.C. He further stated that a divorce

proceedings was already pending before the competent civil Court viz., S.P. No. 97 of 1984 and that it was open to the respondent to claim

maintenance before that Court u/s 24 of the Hindu Marriage Act.

The learned counsel appearing for the wife contended before me that the proceedings u/s 125 Cr.P.C. and the proceedings under the Hindu

Marriage Act are two independent proceedings and therefore even during the pendency of a proceeding under the Hindu Marriage Act it was

open to the concerned person to seize the Magistrate. The scheme contemplated under Chap. IX of the Cr.P.C. is one meant to meet emergent

situations which the civil Courts cannot decide immediately, and which would cause disorder in the society. That is why it is made part of the Code

of Criminal Procedure. Secondly such a provision was introduced for the first time (a) when there was not a complete network of civil Courts all

over the country and (b) when the law regarding maintenance was still at a nebulous stage. Now there is a full-fledged law of maintenance, and

also a full-fledged law regarding marriage and divorce. Section 24 of the Hindu Marriage Act contemplates maintenance pendente lite and S. 25 of

the Act contemplates the grant of maintenance at the time of the decree or even at any time subsequent thereto on application by the concerned

person.

When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other

inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go

before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S. 127 of the Cr.P.C.

if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in

the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when

the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be

cancelled. I therefore come to the conclusion that the institution of a proceeding under S. 125, Cr.P.C. when a civil proceeding is already pending

between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap. IX

of the Cr.P.C.

In the result, the Cr. Misc. Petition is allowed and the proceedings in M.C. No. 5 of 1985 on the file of the Sub-Divisional Judicial Magistrate,

Sankaridurg are quashed

Petition allowed.