K.G. Gangadharan vs T.R. Parvathi

P.K. Sethuraman, J.—This is a petition under S.482 of Crl. P.C., praying to call for the records in M.C. No. 38 of 1985 on the file of the

Sub Divisional Judicial Magistrate, Sankari and to quash the proceedings.

The petitioner is the respondent-- (husband) in M.C. No. 38 of 1985 on the file of the Sub Divisional Judicial Magistrate, Sankari and the

respondent herein is the wife of the petitioner and she has filed the aforesaid M.C. No. 38 of 1985 claiming maintenance under S.125 of Crl. P.C.

The petitioner has come forward stating that the marriage took place on 10th October, 1983 between himself and the respondent sad, after the

marriage, they went to Bangalore, stayed there for three or four days and returned to Calcutta on or about 30th October, 1983. They lived

together for a month or two with the petitioner''s father at No. 9-B, Paddapukar Road, Lajpatraj K Sarain, Calcutta. Thereafter the respondent

left the matrimonial home and was staying with her parents. She was having serious ailments and she could not comply with the matrimonial

obligations. He filed a petition for dissolution of the marriage on that ground as well as on other grounds in matrimonial Suit No. 520 of 1985

before the District Judge, Alipore, Calcutta. The respondent filed an application in that suit for alimony pendente lite and for costs of litigation under

S.24 of the Hindu Marriage Act to pay her a sum of Rs. 1,000 per mensem for her travelling expenses from Tamil Nadu to Calcutta and for her

boarding and lodging at Calcutta for contesting the suit and for her maintenance and other expenses and Rs. 2,000 for defraying the interim

expenses and costs of litigation. The learned Judge after hearing both sides, disallowed monthly allowance, but ordered to pay Rs 1,000 as costs

of litigation of the matrimonial suit. Against the said order, the respondent has filed a revision before the Calcutta High Court and the High Court

has remitted the matter back to the trial Court for fresh consideration and that is said to be pending. While so, the respondent has filed the

maintenance petition in the Court of the Sub Divisional Judicial Magistrate, Sankari in M.C. No. 38 of 1985 claiming maintenance of Rs. 1,000

and the petitioner has filed a detailed counter. According to the petitioner, the respondent has no right to file the petition and ask for maintenance,

when she has asked for maintenance in the civil proceedings. Hence, it has been prayed that the records have to be called for and the proceedings

have to be quashed.

The petitioner has come forward with this petition stating that his wife has no right to claim maintenance in the petition filed by her under S.125,

Crl. P.C, while in the Matrimonial Suit No. 520 of 1985 filed by him in the District Court at Alipore, Calcutta, she had claimed maintenance. It is

to be pointed out that even according to the petitioner, the wife''s claim for maintenance unfortunately had been negatived in the High Court at

Calcutta and the matter is said to have been remitted back to the trial Court. Even assuming for a moment that she had been granted interim

maintenance under S.24of the Hindu Marriage Act, as rightly contended by the learned Counsel for the respondent, the claim for maintenance by

the wife under S.125. Crl. P.C., cannot be negatived. The learned Counsel for the respondent submitted in this connection, the decision reported

in Captain Ratnesh Chander Kaushal v. Mrs. Veena Kaushal AIR 1978 (S.C.) 1907. Therein the learned Judges of the Supreme Court have

pointed out that an order of interim maintenance by a Civil Court can have no application to a case in pending proceedings under S.125 Crl. PC.

The learned Judges have given reasons, which are: (1) the direction by the civil Court is not a final determination under the Hindu Adoptions and

Maintenance Act; but an order pendente lite under S. 24 of the Hindu Marriage Act; and (2) the amount does not include the claim for

maintenance of the children, although the order does not advert to the fact that wife had their custody. In this case, we are not concerned with any

children. But, as pointed out by the learned Judges, the first reason is there and even as pointed out earlier, there had been no order of interim

maintenance even under S.24 of the Hindu Marriage Act. The learned Counsel for the petitioner had chosen to rely on the decision reported in J.

Sampathkumar v. Subashini 1986 Cri. L.J. 1633, which is a decision rendered by the learned Justice David Annoussamy. The facts in that case

relate to a maintenance petition filed by a divorced wife after the completion of the divorce proceedings. The learned Judge has pointed out that the

divorced wife could have claimed such maintenance in the divorce proceedings itself under S.25 of the Hindu Marriage Act for getting

maintenance. In such circumstances, the learned Judge had chosen to point out that the wife ought to have asked for maintenance in the

matrimonial proceedings itself or subsequently by an interlocutory application in the matrimonial Court and accordingly the revision filed by the

husband in that case was allowed and the order granting maintenance was set aside. Having regard to the facts in our present case, the said

decision relied on by the learned Counsel for the petitioner will not at all be helpful to the case of the petitioner. Accordingly, I find no merit in the

petition filed by the petitioner to quash the proceedings. Hence the petition is dismissed.