K. Malayandi vs Valliammal and Others

Arunachalam, J.—This petition coming on for hearing on Friday the 29th day of June 1990 upon perusing the petition and the affidavit filed

in support thereof and upon hearing the arguments of Mr. D. Peter Francis, Advocate for the Petitioner and of Mr. Shanmugavelayudham

Advocate for the Respondents, and having stood over for consideration till this day, the Court made the following order:

The Petitioner is the husband of the first Respondent and father of Respondents 2 to 5. The first Respondent filed a petition u/s 125 Code of

Criminal Procedure before the Chief Judicial Magistrate, Tiruchirapalli, in M.C. No. 6 of 1982, claiming maintenance for herself and her minor

children, Respondents 2 to 5, as well as Subramanayaswami, her minor son, who has not been shown as Respondent in this petition.

In the petition filed before the Court of first instance, the first Respondent has stated that her husband had developed illicit intimacy with a lady

working in his office and also took to drinking. Her husband started neglecting the Respondents and did not even provide for their daily needs.

Remonstration resulted in cruelty. Physical torture and mental agony, imputing infidelity continued till she and her children were driven out in July,

1981.

In the counter statement filed by the Petitioner herein, he denied the allegation and expressed his willingness for restoration of conjugal rights

between the spouses. He had also stated that he had filed a petition before the Sub Court, Karur, for restitution of conjugal rights, which was

pending enquiry.

Before the Chief Judicial Magistrate, Tiruchirapalli, the wife examined herself as P.W.1, apart from examining two other witnesses. The

Petitioner herein examined himself as R.W.1 and had R.Ws.2 and 3 examined in support of his case. The certified copy of the order in

H.M.O.P.17 of 1982 on the file of the Sub Court, Karur, dated 16-7-1982 was marked as Ex.R-1.

A few dates may be relevant to consider the issue involved in this petition. The petition for maintenance was presented before the Chief Judicial

Magistrate, Tiruchirapalli, on 23-3-1982. The counter statement of the husband was filed on 1-6-1982. The ex-parte decree allowing the plea of

the husband for restitution of conjugal rights was passed on 16-7-1982. (Ex.R-1).

The trial Magistrate, after appreciation of evidence let in by both parties, on 27-8-1982 held in favour of the wife and directed the Petitioner

herein to pay a monthly maintenance of Rs. 100/- to the first Respondent and Rs. 60/- each for the minor children. In the course of the order the

Chief Judicial Magistrate had taken note of Ex.R-1, the proceedings in which were admittedly initiated after the wife had issued notice to her

husband. As a question of fact, it was further found that there was no evidence to show that the Petitioner herein took any effort or even attempted

to take back his wife and children. Following the decision of the Andhra Pradesh High court is Syed Chulan Sajjad v. Parween Fatima and Anr.

1980 M.L.J. Cri. 786 the Magistrate held, that a mere decree for restitution of conjugal rights did not automatically bar the wife from claiming

maintenance, but that it was only a piece of evidence to be taken into account while determining the wife''s entitlement to maintenance.

The aggrieved Petitioner preferred Crl. R.C. No. 51 of 1982 on the file of the II Additional Sessions Judge, Tiruchirapalli. The revisional Court

concurred with the findings of fact rendered by the enquiring Magistrate. The revisional court took note of the evidence of P.W.2, the neighbour of

the spouses, when they lived together, regarding ill-treatment meted out to the Respondents. The evidence of P.W.3, a resident of Maravanoor,

who has spoken about cruelty was also accepted. With regard to Ex.R-1, the decree in favour of the husband for restitution of conjugal rights, it

was observed that, on facts, it appeared to be a paper decree and no steps had been taken by the Petitioner to take back his wife and children in

his family-fold.

The Petitioner, who had exhausted his statutory remedy by filing a revision before the II Additional Sessions Judge, Tiruchirapalli, and was,

therefore, prohibited from preferring a second revisions due to the bar contained in section 397(5) Code of Criminal Procedure, has chosen to

invoke the inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure to have the maintenance award set aside, as far as the first

Respondent alone, is concerned.

Mr. D. Peter Francis, learned Counsel appearing for the Petitioner contended that the exercise of inherent powers to set right the miscarriage of

justice as necessary, since a decree for restitution of conjugal rights was a good answer to the wife''s claim u/s 125 Code of Criminal Procedure.

To gain support for his contention, he relied upon the judgment of Maheswaran, J., in S.R. Govindarajan alias Babu v. Rukmani Govindarajan and

Anr. 1980 24 M.L.J. Crl. 662 : 1980 L.W. (Crl.) 86

Mr. S. Shanmughavelayudham, learned Counsel appearing on behalf of the Respondent submitted, that for the application of law, the facts in

each case will be relevant and this was a case, as rightly found by the Courts below, where the husband was attempting to utilize the paper decree

for restitution of conjugal rights, passed ex-parte, to deny the legitimate claim for maintenance, by the wife. He also contended that the social

purpose behind Section 125 Code of Criminal Procedure. Must be taken note of and, in any event, this was not a case which called for the

exercise of the inherent powers, especially when on findings of fact Petitioner had lost in both the Courts below.

I have carefully, considered the rival contentions. This Petition could have been dismissed without serious scrutiny, but for the judgment of

Maheswaran, J., brought to my notice. It is true that the learned Judge had expressed his view that a decree for restitution of conjugal rights was a

good answer to the wife''s claim u/s 488, Code of Criminal Procedure (old Code). It was further observed that in that case the wife had not gone

and lived with her husband even after the decree for restitution of conjugal rights. That, according to the learned Judge, was a clear case where the

wife did not want to live with her husband and under the those circumstances there was no justification for claiming separate maintenance from her

husband. Prima facie, it appears from the facts of that case, that the decree for restitution of conjugal rights was not an ex-parte order. It had taken

over 15 months for the husband to obtain a decree for restitution. The maintenance order by the criminal Court of course was subsequent to the

civil Court decree, which appears to have been made after contest. The Magistrate had passed an order as follows:

It was brought to the notice of this Court that the petition for restitution of conjugal rights has been allowed. However, the Petitioner insists on

getting maintenance.

Even after the decree for restitution of conjugal rights was brought to his notice. Maheswaran, J., had agreed with the observations of the

Rajasthan High Court in Smt. Geeta Kumari Vs. Shiva Charan Das, . Even that was a case, where the wife after contest had an adverse order in

the petition filed by the husband for restitution of conjugal rights. Her appeal, to the appellate Court also, had failed. The decree of the civil Court

indicated that the wife was living away from her husband, without sufficient cause.

Recently Janarthanam J., in G. Tilakavathi v. A. Gunasekaran 1990 L.W. (Crl.) 31 has agreed with the view expressed by Maheswaran. J.

Even in that case the facts disclose, that there was a contest in the civil Court before a decree for restitution was passed. It is quite true that a

concluded ex-parte decree is as much a valid decree, binding on the parties, as a contested one. However, in the instant case, after holding that

Ex.P.1 was a paper decree and the Petitioner had no bona fide, both the Courts below have taken note of the evidence that the Petitioner had

beaten the first Respondent at the residence of latter''s mother and also spit on the first Respondent after chewing betel. Ill-treatment was found as

a question of fact in the criminal proceedings, while there was no scope in the civil proceedings to render findings of fant, on appreciation of

evidence, after contest. In the normal course it would have been necessary to refer this petition to be decided by a Division Bench of this Court, if I

choose to differ from the view taken by Maheswaran, J., and Janarthanam, J. Without expressing dissent I hold that the facts in those cases where

the decree of the civil court was after contest are distinguishable apart from the lack of need to exercise inherent powers in this petition, for it is not

one of those rare cases where miscarriage of justice is apparent. It is not possible for me to overlook the observations of the Supreme Court in

Savitri Rawat Vs. Govind Singh Rawat, where the Court had occasion to consider the scope and nature of maintenance of proceedings and the

jurisdiction which a Magistrate could exercise under Chapter IX of the Code of Criminal Procedure:

The jurisdiction of a Magistrate under Chapt. IX of the Code is not strictly a criminal jurisdiction while passing an order under that Chapter asking

a person to pay maintenance ''to his wife, child or parent, as the case may be, the Magistrate, is not imposing any punishment on such person for a

crime committed by him. Chap. IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance subject to a

decree, if any, which may be made in a civil Court in a given case provided the Personal law applicable to the person concerned authorizes the

enforcement of any such right to maintenance. The Code, however, provides as a quick remedy to protect the applicant against starvation and to

tide over immediate difficulties. Chap. IX of the Code does not in reality create any serious new obligation unknown to Shri Bhagwan Dutt Vs.

Smt. Kamla Devi and Another, this Court has explained the object of Sections 488, 489 and 490 of the Code of Criminal Procedure 1898, which

replaced by the provisions in Chap. IX of the Code, thus:

Sections 488, 490 constitute one family. They have been grouped together in chap. XXXVI of the Code of 1898 under the caption"" of the

maintenance of wives and children"". This Chapter, in words of Sir James ''Fitstephen provides"" a mode of preventing vagrancy, or at least or

preventing its consequences."" These provisions are intended to fulfil a social purpose. There object is to compel a man to perform the oral

obligation, which he owes to society, in respect of his wife and children. By providing a simple speedy, but limited relief, they seek to ensure that

the neglected wife and children are not left baggard and destituted on the scrap-heap of society and thereby driven to a lief of vagrancy, immorality

and crime for their subsistence.

Again, the Supreme Court in Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, speaking through V.R. Krishna Iyer, J.

has observed that

Section 125, Code of Criminal Procedure, is a measure of social justice and specially enacted to protect women and children and falls within the

Constitutional sweep of Article 15(3) reinforced by Article 39. There is no doubt that sections of statutes calling for construction by Courts are not

petrified print but vibrant words with social functions to fulfil. The brooding presence of the Constitutional empathy for the weaker sections like

women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in packing out that

interpretation out of two alternatives which advance the cause - the cause of the derelicts.

Cases are not testing where the husbands resort to obtaining a quick ex-parte decree for restitution of conjugal rights, not with a bona fide

view to take back the wife, but to thwart the summary maintenance proceedings, possible u/s 125 Code of Criminal Procedure Factual findings in

the present case are unassailable. There can be no doubt that a civil Court decree is binding on the criminal Court, but on issues touching

questions, such as, wife withdrawing from the society of her husband, desertion on her part on her leading an adulterous life still have to be

examined by the criminal Court especially when a decree is ex-parte, and conflict in factual findings do not arise. The words ''on proof'' in Section

125(5) read with Section 125(4) Code of Criminal Procedure? certainly would take in their fold the exercise of discretion by the Magistrate as is

contemplated u/s 127(2) Code of Criminal Procedure where ""it must appear"" to the Magistrate that in consequence of any decision of a competent

civil Court, an order made u/s 125 Code of Criminal Procedure had to be cancelled or varied.

Whether always, irrespective of facts a decree for restitution of conjugal rights, ex-parte or after contest, will be a complete answer to the

wife''s claim for maintenance u/s 125 Code of Criminal Procedure can be considered in an appropriate case. With these observations, this petition

is dismissed.