K.R. Sagayaraj vs Mrs. C. Rajammal and S. Vineet Roy

G.M. Akbar Ali, J.—The petition is filed seeking a direction to call for the records in M.C. No. 379 of 2009 on the file of the learned II Additional Family Court, Chennai and quash the same.

A short point arises for consideration in this petition is whether the proceedings u/s 125 Code of Criminal Procedure is maintainable when a civil court has disallowed maintenance for the wife in a civil suit?

The Petitioner is the husband and the Respondents are the wife and chid of the Petitioner. The Petitioner and the 1st Respondent got married on 10.2.1992 according to Christian Rights and Customs. The 2nd Respondent was born on 13.8.1993. The matrimonial relationship between the Petitioner and the 1st Respondent lasted only for a short time and difference arose between them and the matter was taken to various forums for conciliation and the conciliation failed. The husband and wife are living separately from 1997 and the 2nd Respondent is with the mother.

The 1st Respondent filed a suit in OS. No. 58/97 before the Family Court at Chennai for maintenance claiming Rs. 3000/- for each Respondents. The petiitoner filed O.P. No. 14/98 for dissolution of marriage on the grounds of desertion and cruelty u/s 10(1)(ix) and 10 of Indian Divorce Act.

The Petitioner contested the maintenance suit stating that the 1st Respondent has deserted him and is living separately without any reason and therefore, she is not entitled for maintenance.

The Principal Family Court passed a common order dated 30.6.2004, partly allowing the maintenance suit thereby decreeing a sum of Rs. 3000/-for the 2nd Respondent/child and held that the 1st Respondent is not entitled for maintenance as she has not proved desertion by the husband. The Court has also dismissed the petition for dissolution of marriage as the husband has not proved the desertion and cruelty. Aggrieved by the order of maintenance, the Petitioner has preferred in appeal in A.S. No. 956/2005 before this Court and the same is pending.

Meanwhile, the 1st Respondent has initiated proceedings u/s 125 Code of Criminal Procedure before the Family Court in M.C. No. 379/2009. The husband has come forward with the above petition to quash the above proceedings on the sole ground that the petition is not maintainable as the civil court has already disallowed the maintenance. Therefore, the only point for consideration arises is whether a subsequent application u/s 125 Code of Criminal Procedure is mainteinable when the wife''s suit for maintenance was dismissed on merits.

Mr.T. Arul, learned Counsel for the Petitioner would submit that the civil court had gone into detail in the suit for maintenance and has held that the 1st Respondent is not entitled for maintenance and therefore, the subsequent application for the same relief u/s 125 Code of Criminal Procedure is not maintainable.

The learned Counsel relied on a judgment of the Bombay High Court reported in (Muralidhar Chintaman Waghmare v. Pratibha Muralidhar Waghmare and Anr.). (II) 1986 DMC 386 The High Court of Bombay answering to a similar question held as follows:

Once the Civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the Criminal Court u/s 125 Code of Criminal Procedure is bound by that decision as proceedings in Civil Court are substantial whereas proceedings u/s 125 Code of Criminal Procedure are of a summary nature.

The learned Counsel relied on a decision reported in (G. Ramanathan v. Mrs. Revathy) 1989 Cri.LJ 2037 (1) wherein David Annoussamy J has held as follows:

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 u/s 127 of the Code of Criminal Procedure, 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 u/s 125 Code of Criminal Procedure 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 Code of Criminal Procedure

On the contrary Mrs. Auxila Peter, learned Counsel for the Respondents would submit that the proceedings in a civil court for maintenance is not a bar for the proceedings u/s 125 Code of Criminal Procedure The learned Counsel pointed out that the right u/s 125 Code of Criminal Procedure is an independent right. The learned Counsel relied on a decision reported (Vanaja v. Gopu) in 1991 (1) MLJ 290, wherein on consideration of a claim of interim maintenance u/s 24 of the Hindu Marriage Act and simultaneous claim of maintenance u/s 125 Code of Criminal Procedure , this Court held as follows:

It is thus clear that the right to claim maintenance or litigation expenses u/s 24 of the Hindu Marriage Act, is not made available generally to the parties to a marriage, but only when a proceeding between the spouses is pending under that Act, and in that respect, the right conferred u/s 24 of that Act, is in the nature of a special statutory right not in any manner outside the provisions Section 24 of the Hindu Marriage Act. The purpose behind Section 24 of the Hindu Marriage Act is that parties to a matrimonial cause should not take undue and unfair advantage of a superior financial capacity to defeat the rightful claims of a weaker party and the proceedings u/s 24 of that Act serve a limited purpose, i.e., during the pendency of proceedings under that Act, to enable the weaker party to establish rights without being in any manner hindered by lack of financial support. If the special nature of the statutory right u/s 24 of that Act and its purpose, are borne in mind, it is at once clear that the enforcement of that right, cannot in any manner be hedged in by a consideration of proceedings otherwise initiated, either u/s 125, Code of Criminal Procedure or under the ordinary law.

The learned Counsel also relied on an unreported judgment in C.R.P(PD) No. 4001 of 2008 dated 25.8.2009, wherein this Court has again dealt with the question whether a pre-existing order for payment of maintenance granted by the Chief Judicial Magistrate u/s 125 Code of Criminal Procedure is a bar for maintaining an application u/s 24 of Hindu Marriage Act and held that it is not a bar and both are independent proceedings.

Heard and perused the materials available on record.

This is a pathetic case of a wife who has been denied of maintenance from her husband from 1997. She had filed O.S. No. 58/97 before the Family Court for maintenance for herself and her child. The Family Court declined to grant the relief holding that she has not proved her case of desertion by her husband. But the Court has granted maintenance for her child against which, the husband has gone an appeal and this Court has passed an order of stay on a condition that the husband shall deposit the arrears of maintenance till the date of order. That was the period from 4.12.1997 to 9.11.2005. The Petitioner has moved the Family Court again u/s 125 Code of Criminal Procedure in MC No. 379 of 2009. This is also opposed by the husband. The parties are governed by the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869. None of the above Acts deals with maintenance to a Christian wife.

Section 37 of the Divorce Act, 1869 reads as follows:

Power to order permanent alimony:

Where a decree of dissolution of the marriage or a decree of judicial separation is obtained by the wife, the District Court may order that the husband shall to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties" Power to order monthly or weekly payments In every such case the Court may make an order on the husband for payment to the wife of such monthly or weekly sums for her maintenance and support as the Court may think reasonable; Provided that if the husband afterwards from any cause becomes unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order wholly or in part, as to the Court seems fit.

Except this there is no other provision in the Special Acts providing maintenance for a Christian wife.

Section 125 of Code of Criminal Procedure reads as follows:

Order for maintenance of wife, children and parents:

(1) If any person having sufficient means neglects or refuses to maintain -(a) his wife, unable to maintain herself....

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

The right of a Christian wife to claim maintenance under the Divorce Act 1869 is subject to a proceeding under the Act. Unlike the right of a Hindu wife under the Hindu Law or under The Hindu Maintenance and Adoption Act or the right of Muslim woman under the Mohamedan Law, the right of maintenance to a Christian wife is not under any statute. It is based on law of equity and justice. A Division Bench of this Court in Mrs. Stella Pakkam v. Rajiah Ratnam AIR 1966 Mad 225 S. Ramachandra Iyer, CJ and Kunhamed Kutty, J dealt with the law applicable to the Christians in India and observed as follows:

...

That a wife, in England, could not, but for the statute, agitate her claim for maintenance against her husband by an action, is more or less due to a historical development of the law due perhaps to thebasic concept of the spouses being one in the eye of law. That rule has not been accepted in America. There isless reason in this country for the acceptance of any such rule, where u/s 9 CPC the court has jurisdiction to try all suits of a civil nature except those the cognizance of which has been either expressly or impliedly barred.

Devasahayam Vs. Devamony and Another, was a case where the husband''s application for dissolution of the marriage with his wife was dismissed. But while so doing, the lower court granted a certain sum of money, payable every month as permanent maintenance to the wife. A Bench of this Court held that, apart from the provisions of Section 37 of the Indian Divorce Act, there would be no power in the Court to grant permanent alimony and the suit for dissolution of marriage having been dismissed, there was no justification for the award of maintenance. At the same time, it was observed:

If she wants maintenance without either judicial separation or divorce, she can have the remedy only by filing a suit or an application under the Criminal Procedure Code

A right to agitate the wife''s claim to separate maintenance apart from proceedings under the Indian Divorce Act, has thus been accepted.

The question whether a Christian wife is entitled for a maintenance from her husband and if so, under what statute and procedure she should adopt for enforcing such a right, will have to be decided not on the technical notions but on principles of equity and justice and by adopting the procedural law. The defences available for refusal of such maintenance by the husband will also based on equity and justice.

The method and manner of enforcing this right is by way of filing a civil suit or claiming a maintenance in a proceeding pending under the Divorce Act. Like any other person the Christian wife may also resort to the proceedings u/s 125 Code of Criminal Procedure with an expectation that she would get quicker and speedy relief in those proceedings. The wife is entitled to resort to proceedings before a Civil Court for the enforcement of such maintenance right. It is only the adoption of different methods for the enforcement of right to maintenance.

While dealing with the question whether a pre-existing order for payment of maintenance u/s 125 of Code of Criminal Procedure is a bar for maintaining an application u/s 24 of the Hindu Marriages Act, the Courts are of the uniform view that it is not a bar and both the reliefs are independent of each other. It is well settled that a claim u/s 24 of the Hindu Marriages Act is a relief of interim maintenance during the pendency of matrimonial proceedings. Initiation of a legal proceedings under the Hindu Marriages Act is a condition precedent whereas the claim u/s 125 Code of Criminal Procedure is a social relief. The civil courts granting maintenance have only to take into consideration of the pre-existing order of such payment of maintenance by the criminal court.

The decisions relied on by both counsels deals with the right of a Hindu wife under two enactment. As stated above the Christian wife can claim maintenance from her husband through criminal proceedings and through civil proceedings. She may pursue both criminal and civil proceedings simultaneously as there is no legal bar. Denial of maintenance by a civil court for maintenance will not act as bar for a claim u/s 125 Code of Criminal Procedure

u/s 125 Code of Criminal Procedure a wife who is unable to maintain herself is entitled for maintenance. Under Clause 4 of Section 125 Code of Criminal Procedure. She is not entitled to receive such maintenance from her husband if, without any sufficient reason refuses to live with her husband.

The civil suit was dismissed on the ground that the wife has not proved desertion by her husband. The wife has not filed an appeal against this finding, but has chosen an alternative remedy of approaching Criminal Court, which is a statutory right and a summary proceeding. Both are independent rights. While granting maintenance, if there is any pre-existing order of maintenance, the court has to take into consideration of such order to pass a decree. Except that there is no bar for approaching a criminal court u/s 125 Code of Criminal Procedure

The order passed in the civil court will not be a bar. Therefore, there is no merit in the petition. Hence the criminal original petition stands dismissed. Consequently, connected Mps are closed.