Palanivel vs B. Saraswathi and 2 Minors

Arunachalam, J.

This petition was heard in part on 17.3.1993 The only ground urged by the petitioner''s Counsel was that the impugned proceedings u/s 125

Cr.P.C. could not have been initiated by B Rajagopal, father and guardian of the first respondent and grandfather of the minor second respondent.

I directed the petitioner''s Counsel to cite authorities, if any, for this proposition, for which he replied that there was none. Anyhow, he pleaded for

a week''s time to again search for authorities. Today learned Counsel represented that, to his knowledge, there was no authority for the said

proposition.

Petitioner is admittedly the husband of the first respondent and father of second respondent, his minor daughter. Petitioner was not successful in

M.C. No. 14 of 1990 on the file of Judicial Magistrate No. V. Madurai, wherein proceedings were initiated u/s 125 Cr.P.C. by the father of the

first respondent since the first respondent was mentally deranged and was not in a position to prefer a petition by herself on her behalf and on

behalf of her minor daughter. Petitioner preferred Crl. R.C. No. 2 of 1992 before the Principal Sessions Judge, Madurai, challenging the

correctness of the order of the Enquiring Magistrate directing the petitioner to pay a monthly maintenance of Rs. 300/- to the first respondent and

Rs. 200/- to the second respondent. First revisional Court concurred with the finding of fact recorded by the Enquiring Magistrate and dismissed

the revision.

Petitioner, who is barred from preferring a second revision, has chosen to invoke the inherent powers of this Court to have the maintenance

award set aside. As a matter of course, inherent powers of this Court cannot be exercised, especially when there is prohibition for a second

revision, unless this Court is satisfied in rarest of rare cases that there has been miscarriage of justice. Facts placed before the Enquiring Magistrate

disclose that the petitioner and the first respondent entered into matrimony on 16.7.1979 and the second respondent was born out of that marriage

in or about 1980. It is the case of the wife that in or about 1982 on transfer to Sivakasi, petitioner insisted on her obtaining 10 sovereigns of gold

jewellery as dowry and further make arrangements to provide him with a job. On that demand, petitioner drove her out of the matrimonial home.

Shocked wife thereafter became mentally deranged. Petitioner had wilfully neglected his wife and daughter and did not choose to maintain them

thereafter. The case of the petitioner before the Enquiring Magistrate was that the wife had voluntarily left the matrimonial home to stay with her

parents and in a panchayat he had already paid a lumpsum of Rs. 10,000/- in full quite of the maintenance for both the respondents. Both the

Courts below have held on the basis of the evidence of the Medical Officer, P.W. 3, coupled with the version of P.Ws. 1 and 2, that the first

respondent had become mentally deranged only after her having been thrown out of the matrimonial home. Plea of the petitioner that he was duped

into matrimony, suppressing the fact of mental derangement of his wife, was not accepted by both the Courts below and to my mind correctly, on

the evidence available on record. The Court below has taken note of the specific fact that prior to 1982-83 first respondent could not have been

incapacitated, since she was working as a Teacher in a school, prior to matrimony. Factually wilful neglect was found and maintenance to each of

the respondents, as stated earlier, was ordered. The Court below also took note of the law that mere receipt of lumpsum payment, which will not

be commensurate with the maintenance that the wife and daughter could normally be entitled to, cannot stand in the way of the wife and daughter

pleading for a regular monthly maintenance award.

When evidence is available that the wife was not only ill-treated by her husband but dowry demand was also made, his inhuman behaviour is so

patent. Further, the case of the wife through her father, that she was sent away from the matrimonial home, only on that score, has also been

accepted. There is no gainsaying of the fact that only because of the conduct of the husband the wife had become mentally deranged and became

incapacitated. The behaviour of the husband is nothing short of wilful neglect and the wife and the minor daughter have a right to be maintained by

the husband, who is under a legal as well as moral obligation to do so.

Section 125 Cr.P.C. does not contain any bar which would prohibit the father and then custodian of his mentally deranged daughter, who

became so incapacitated, because of the cruelty inflicted by her husband, to move the Court of the first instance pleading for a maintenance

allowance for his daughter and grand-daughter. Even in the petition for maintenance, it has been specifically mentioned that the father was initiating

action as next friend and guardian of his incapacitated daughter and his minor granddaughter. There was no dispute by the petitioner of the

incapacity of his wife due to mental derangement.

The object of a proceeding u/s 125, Cr.P.C. is not to punish the husband or the father, as the case may be, for his wilful neglect, but is intended

to prevent vagrancy by compelling him to maintain his wife and minor daughter, who are unable to maintain themselves. The Section was

introduced in the Criminal Procedure Code as a quick and effective remedy and obviously as a welfare measure with a social purpose behind it,

which cannot be overlooked by Courts on a hypertechnical legal ground, especially when the section itself does not prohibit such a course. Liberal

interpretation is bound to be adopted. So long as there is no prohibition in law and when specifically the father has claimed that he was constrained

to initiate action u/s 125, Cr.P.C. due to mental derangement of his daughter as a result of the cruelty inflicted on her by her husband, I find no

merit in the submission that the Enquiring Magistrate had no jurisdiction to entertain proceedings u/s 125, Cr.P.C. In respect of initiation of

prosecutions for offences against marriage (Chapter XX I.P.C.) there is bar for taking cognizance, except upon a complaint made by some person

aggrieved of the offence (Section 198, Cr.P.C.). Even then an exception has been carved out, in cases of lunacy, idiocy, sickness or infirmity etc.,

leading to inability make a complaint, in which contingency, with the leave of the Court, persons mentioned in Section 198(1)(c), Cr.P.C. could

institute the complaint. Such a bar does not exist for initiation of proceedings u/s 125, Cr.P.C. The Enquiring Court must be held to have correctly

exercised jurisdiction on factually being satisfied, on the material placed before it that the wife was incapacitated, which fact was not seriously

disputed by the petitioner, needing her next friend and guardian father, to set the law in motion. The findings recorded by both the Courts below

are unassailable. This petition shall stand dismissed.