Mayarkara Illath Narayanan Moosad vs Koori Kathil Itticherry Amma

Sadasiva Aiyar, J.—The petitioner in revision, Narayana Moosad, was at first directed by the Magistrate to pay Rs. 15 a month for the

maintenance of the respondent''s (Itticheri Amma''s) elder child who seems to have been born in 1914. This order was passed on 12-5-1916,

notwithstanding the petitioner''s denial that he kept or married the woman or that the child was born to him. Against that order there was a previous

revision petition to this Court (Crl. Revision Case No. 491 of 1916), and the ""Magistrate''s order was set aside by Mr. Justice Spencer on 4-12-

1916 in order that the Magistrate might consider the circumstances of the woman''s tarwad and then fix the maintenance.

Pending this maintenance case before the Sab-Divisional Magistrate, the petitioner filed a suit O.S. No. 295 of 1916) in the District Munsif''s

Court of Tirur for a declaration that the plaintiff was never his wife and the child was not born to him and for another relief (not relevant to this

case). That declaration was granted by the District Munsif. When the Criminal maintenance case came up again before the Sub-Divisional

Magistrate the petitioner produced the judgment and decree of the District Munsif and requested the Magistrate to drop all further proceedings in

the maintenance case. The Magistrate refused to do so and passed a fresh order on 3-4-1917 directing the petitioner to pay the complainant,

Itticherri Amma, a sum of Rs. 8 per mensem for the maintenance of the boy, Krishnan and another sum of Rs. 7 for a child named Parvathi, aged 9

months, that child having been in the womb when the first order of the Magistrate (12-5-1916) was passed.

The learned Magistrate affirms his finding that the complainant was kept by the petitioner and the first child was born to him. And one of his

reasons is that the petitioner made an attempt to compromise the complainant''s claim and obtained a release deed, Exhibit I, from her for a

consideration of Rs. 200. Though the petition No. 20 of 1916 (which seems to have been numbered after the remand as 125/1916) prayed for

allowance for the maintenance of the elder child alone, the Magistrate, as I said before, has given her Rs. 7 for the maintenance of the younger

child born about July 1916. In the evidence of the complainant taken again on the 30th January 1917, the complainant says "" The second delivery

was after the former case. I claim maintenance for the second child. Accused is the father. It is a female child. "" She admits in her evidence that she

executed the release deed, Exhibit I, because he threatened steps against her civilly and that she also got a promissory note for Rs. 150, Exhibit A

from the petitioner. Then she says "" If this Court passes an order of maintenance, I do not want the pro-note"". There is nothing to show the rate at

which she claimed maintenance for the second child or that the petitioner was called upon to show cause why he should not pay maintenance for

the second child or to state what, according to him, would be a reasonable rate of maintenance. The learned Sub-Divisional Magistrate has

ordered the Rs. 15 which he had in his first order, allowed for the maintenance of the eldest child to be now treated as the maintenance rate for

both children dividing it into 8 and 7. As to why the learned Sub-divisional Magistrate refused to accept the District Munsif''s decree declaring that

the complainant was not the petitioner''s wife nor was the child born to him, the Magistrate makes the following observations: ""At the risk of

pronouncing an obiter dictum I cannot help remarking that the possibility of such thing happening "" (namely, a Civil Court declaring the petitioner

not to be the father of the child and granting him damages for bringing a false complaint and the petitioner inducing the High Court to Order the

Sub-Divisional Magistrate to retry the case) "" does not conduce to the dignity of justice either Civil or Criminal some means of co-ordination

should exist. In this case the procedure of this Court by comparison with that of the Civil Court is certainly not summary. I understand that the

Munsif is now engaged in revising his own order "" I might here add that the learned Sub-Divisional Magistrate himself has revised his former order

because he says in paragraph 7 of the present order "" The sum of Rs. 15 is perhaps rather excessive for one child."" I understand that the District

Munsif dismissed the review petition put in by the complainant in the civil case.

As regards the comparison indulged in by the learned Sub-Divisional Magistrate between the procedure of his court and the procedure of the

District Munsif ''a Court, it seems to me not relevant and I may perhaps be permitted to state that the manner m which the Sub-Divisional

Magistrate has on the bare statement of the complainant in the witness-box in January 1917 allowed her a sum of Rs. 7 for the maintenance of the

second child whose maintenance was not the subject of the complaint shows that his procedure is rather summary. The learned Magistrate is quite

right in saying that some means of co-ordi nation should exist between the Civil and Criminal Courts. I think that such means of co-ordination has

been laid down"" by competent authorities long ago. In Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R.14 (1886) C 276 decided by

Mr. Justice Princes a very learned Civilian Judge of High authority in criminl matters) and Mr. Justice Beverley, which was argued by Mr. Amir Ah

for the lady who claimed maintenance, the leaned Judge states as follows: Having found ""(in the civil litigation)"" that the relationship of husband and

wife no longer exists, between the parties, it remains for us to consider the effect of our finding on the proceedings before the Magistrate. The

plaintiff asks for an injunction to restrain the Magistrate from enforcing the order for maintenance. We are of opinion that we cannot pass such an

order. The plaintiff will be at liberty to satisfy the Magistrate that, by an order of this Court in its civil jurisdiction, it has been declared that no

relationship, exists between him and the defendant and he can ask the Magistrate on the authority of the cases of Abdur Rahiman v. Sakhina ILR

(1879) C 558 and Inre Abdul Ali Isumailji and Husenb ILR (1883) B.180 toabstain from giving any further effect to his order for maintenance."" In

2 Wier 614, the Magistrate passed on order for maintenance and then a suit was brought and the District Munsif''s court cancelled the order of the

Magistrate. The learned Judges say "" it is obvious that the District Munsif had no jurisdiction to entertain a suit for such a purpose. The decree can

only enure as a decree interpartes determining the right of the parties inter se, but not directly affecting the order of the Magistrate which the High

Court alone are empowered to set aside. What the District Munsif decided was that the woman had been living apart from the husband for more

than 12 years. It is not decided that she did so voluntarily, nor is it found that she has been living an unchaste life or has done anything to disentitle

her to maintenance. If it had been so decided, the Magistrate who passed the original order would have been bound in the interests of justice to

take the judgment into consideration before passing a fresh order to enforce the former order, because such a decision would, as between the

parties, be strong if not conclusive evidence of what it decided."" In this decision of September 1877, the question was not finally decided as it was

unnecessary to decide it for the purposes of that case. Then we come to the case noted in the very next page 615 which was decided by

Wilkinson and Shephard, JJ., in August 1889. I shall quote the whole of the judgment as this has always been considered as laying down the law in

Madras: ""By the decree made by the District Munsif of Palghat in February 1889; the plaintiff Veeran is declared not to be liable to pay separate

maintenance to his wife. The orders for such maintenance previously made by the Head Assistant Magistrate did not take away the jurisdiction of

the Civil Courts to make the declaration, u/s 42 of the Specific Relief Act. The Munsifs decree being final, it is binding upon the parties to it and the

husband is entitled to insist that the Magistrate does not enforce the order of maintenance, which assumed that the obligation negatived by the

decree existed. It is not open to the Magistrate to ignore a final decree on the ground that it rests on reasons which do not appear to him

satisfactory, the jurisdiction vesting in him u/s 4 88 of the Criminal Procedure Code being auxiliary to that of the Civil Courts. The order of the

Magistrate must be cancelled on the ground that there was no sufficient reason for the wife to refuse to live with the husband and that the decision

of the District Munsif is conclusive on that point. This will not, however, preclude the interference of the Magistrate, if there should arise any fresh

causes for such interference,"" I shall flow consider the case of Deraje Mulinga Naikca v. Marati Kaveri ILR (1907) M. 400 decided by Sir Arnold

White, C.J., and Mr. Justice Miller. The cases Veeran v. Ayyammah (1889) 2 Weir 615 and Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba

ILR (1886) C. 276 are referred to, approved and followed. It distinguishes the case of Subhudra v. Basdeo Dube ILR (1895) A. 29. In Syed

Saib v. Meeran Bee (1909) 20 M.L.J. 12 Munro and Abdur Rahim, JJ., held that "" the Magistrate is bound to abstain from enforcing his previous

order for maintenance when it is once established that the relationship of husband and wife ceased to exist since the date of the order. "" In Ghana

Kanta Mohanta v. Gereli ILR (1904) C. 479 it was held in the converse case that the Magistrate''s finding against the sonship of a person for

whom maintenance was claimed by the mother was not a bar to a suit in the civil court to establish the sonship and to recover maintenance. See

also Trinayani Dasee v. Srichandan Bhuiya (1912) 15 I.C. 603. In Nur Muhammad v. Ayesha Bibi ILR (1905) A 483 Mr. Justice Aikman

following In re. Bulakidas ILR (1898) B. 484 says that ""a decree of a civil court for restitution of conjugal rights passed after an order of

maintenance in favour of the wife superseded the maintenance order and ought to be cancelled and we accordingly cancel it. I am therefore clear

that the learned Magistrate ought to have, in the language of the case in 2 Weir 615, held that the decision of the District Munsif is conclusive on

the question of relationship as declared by that decree and should have refused to pass any order for maintenance. His order is therefore cancelled

in the exercise of the powers of this Court u/s 439 of the Criminal Procedure Code. I might add that the woman having given a registered release

deed Exhibit I and obtained the promissory note Exhibit A and her evidence clearly showing that she refused to be bound by the agreement only,

because she expected an order from the Magistrate more favourable than she got under the release, (she was not willing to give up her claim under

the promissory note unless she got maintenance order from the Magistrate), the learned Magistrate ought to have dismissed her petition on that

ground. See also Veeramma v. Narayya ILR (1883) M. 283

Phillips, J.

On the ground that the Joint Magistrate has failed to consider the effect of the agreement between the parties evidenced by Exhibits A and I

(vide Subuddhi v. Jamuna Bai. 2 Wei Crl. R 631 and on the ground that the Magistrate''s order was passed after the decree of the District Munsif

I agree in the order proposed. The suit in which the District Munsif''s decree was passed was filed after the original maintenance order had been

passed and the District Munsif was clearly wrong in awarding damages to petitioner against respondent on the ground that the latter had obtained a

maintenance order from the Magistrate for it has been repeatedly held that a Civil Court cannot pass a decree interfering with a prior maintenance

order by way of injunction or other similar order (Deraji Malinga Naika v. Marati Kaveri ILR (1907) M. 401 Mahomed Abid Ali Kumar Kadar

v. Ludden Sahiba ILR (1886) C. 276. The District Munsif''s decree had the effect of nullifying the prior magisterial order, and I am not prepared

to hold on the very limited arguments in this case that a party can get a magisterial order for maintenance set aside by a civil court when there has

been no change of relationship between the parties between the date of the order and the date of suit. (Vide Subhudra v. Basdeo Dube ILR

(1895) A 29 In the other cases such as Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba ILR (1886) C. 276 and Abdur Bahman v. Sakhina

and In re Abdul Ali Ismdilji ILR (1883) B 180 the relationship between the parties had '' altered; and in Nur Mahomed v. Ayesha Bibi ILR (l905)

A. 488 the civil decree was a consent decree which provided for the maintenance, and in no decided case to which I have been referred has a

maintenance order been allowed to be set aside by a decree based upon the same facts and material as the magisterial order.