Sundararajan vs Ashok Kumar

Padmini Jesudurai, J.—These proceedings arise out of M.C. 102/84 filed by the respondents herein u/s 125 Cr. P.C. in the Court of the

Judicial First Class Magistrate, Chidambaram, seeking maintenance from the petitioner.

The claim was made on the averment that the first respondent was married to the petitioner on 26-3-80, they lived together in the house of the

petitioner at Ranipet for three months, that in Adi 1980 she went to her elder sister Ranganayaki''s house at Chidambaram, where, since she

became fatherless even as a child, she had been brought up by her elder sister and her husband Dhamodharan, who had arranged and conducted

her marriage, that the petitioner showed no interest in marital life and did not take her back, that the petitioner was then in Cuddaiore, where the

first respondent lived with him for six months during which period, the second respondent was conceived, that she came to her elder sister''s house

for delivery and the second respondent was born 13.6.1981 but the petitioner never came and took back the respondents. Instead, he filed a

petition for divorce at Vellore and since she had no means to conduct the case, she suffered an exparte decree and on the basis of that decree, the

petitioner has married again and though she is employed in Nutritious Meal Centre, getting a monthly pay of Rs. 175/-she needs money for the

expenses for the education of the second respondent, and some more money for her own maintenance, the petitioner having means had failed and

neglected to maintain them. She had therefore, sought Rs. 500/- as monthly maintenance for them both and Rs. 1000/- per year for the expenses

of clothing.

The petitioner resisted the claim, admitting the marriage with the first respondent but denying the other averments, as well as the paternity of the

second respondent and alleged that the first respondent was living in adultery with her elder sister''s husband Dhamodharan and on coming to

know about it, he filed a petition in the Court of the Subordinate Judge, Vellore for divorce and the same had been decreed and the respondents

have means to maintain themselves.

During the enquiry the first respondent was examined as P.W. 1, her eider sister''s husband Dhamodbaran as P.W. 2 and a corroborating

witness P.W. 3. Exs. P. 1 to P. 6 were marked. The petitioner examined himself, as R.W. 1 and Exs. R. 1 R. 3 were marked on his side. The

learned Magistrate held that in spite of the exparte decree of divorce Ex. R. 2, the first respondent was still a ''wife'' entitled for maintenance and

accordingly ordered her monthly maintenance at the rate of Rs. 150/- Regarding the second respondent he held that the second respondent was

not born to the petitioner and rejected the second respondent''s claim for maintenance. The first respondent filed Crl. R.C. 62/86 before the

Sessions Judge, Cuddnlore claiming maintenance for the second respondent and enhanced maintenance for herself, while the petitioner filed Cr.

R.C. 50/86 challenging the award of maintenance to the first respondent. The learned Sessions Judge in a Common, order, partly allowed the

revision filed by the first respondent and granted maintenance to the second respondent at the rate of Rs. 75/- per month and confirmed the

maintenance and quantum awarded to the first respondent. Crl. R.C, 50/86 filed by the petitioner was therefore dismissed, Aggrieved with the

granting of maintenance to the second repondent, the petitioner has filed Crl. R.C. 487/87 and challenging the award of maintenance to the first

respondent, he has filed Crl. MP. No. 8339/87 u/s 482 Cr. P.C.

Thiru K.V. Sridharan, learned Counsel for the petitioner would contend that the learned Sessions Judge was in error in granting maintenance to

the second respondent by setting aside the order of the learned Magistrate. In that regard, he further submitted that Ex. R. 2 the decree for divorce

by the Civil Court u/s 13(l)(lb) of the Hindu Marriage Act on the ground of adultery, disentitled the first respondent from claiming maintenance.

Per contra, Thiru S. Shanmugavelayudham, learned Counsel for the respondents submitted that Ex. R. 2 being on exparte decree, based on no

evidence, can never be construed as rendering a finding of adultery so as to disentitled the first respondent from claiming maintenance. According

to the learned Counsel, a mere reading of Ex. R. 2 would show that the criminal Court could never be bound by a decision of the type rendered in

Ex. R. 2.

The question that arises for consideration is whether the order of the learned Sessions Judge, granting maintenance to the respondents can be

legally sustained.

As far as the first respondent is concerned, since the marriage between the parties and the fact of the respondent living separately are admitted

the only question is whether there is material to hold that the first respondent was living in adultery with Dhamodharan P.W. 2. Even in the petition

filed u/s 125 Cr.P.C., the first respondent had stated that she lost her father when she was a child and it was her elder sister Ranganayaki and her

husband P.W. 2, who brought her up, conducted her marriage at their own expense and settled her in life. As P.W. 1, she has stated so. In proof

of the same, she has filed Ex. P. 1, which is her S.S.L.C. Book, in which P.W. 2 is shown as her guardian. She has also filed Ex. P. 2 her marriage

invitation, which is in the name of P.W. 2. It is further stated that, after the marriage was settled and before the marriage actually took place, the

petitioner got one lakh of rupees under a lottery ticket and after this, he tried to avoid the marriage in the hope of getting a better alliance. The

marriage was however, pushed through and the petitioner having been an unwilling party, stated living a luxurious life of his own, deciding to marry

a second wife. The allegation of the petitioner is that the first respondent is living in adultery with P.W. 2. On the evidence adduced, both the

Courts have held that the first respondent was entitled for maintenance, and had awarded maintenance to her. These findings of fact being

concurrent this Court u/s 482 Cr. P.C, cannot permit the petitioner to re-canvass that issue.

A legal contention, is submitted that in the light of Ex. R. 2 the exparte decree of diverce, the first respondent is not entitled for maintenance.

Reference is made to Section 127(2) Cr. P.C which is as follows :

(2) Where it appears, to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made u/s 125 should be

cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

On the basis of this on behalf of the petitioner, it is submitted, that a competent Civil Court having granted a divorce on the ground of adultery, it is

not open to the Criminal Court u/s 125 Cr.P.C, to go behind the decision and try to recanvass the issue.

The relative scope of proceedings under Chapter IX of the Criminal Procedure Code and other proceedings under the personal law of the

parties, had come up for consideration before the Supreme Court in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, . The Court observed.

A perusal of Section 488 (the present Section 125) would clearly reveal that it carves out an independent sphere of its own and is a general law

providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the

Section. The provision may not be inconsistent with other parallel Acts is so far as maintenance is concerned, but the Section undoubtedly excludes

to some extent the application of any other Act. At the same time, it cannot be said that the personal law of the Parties is completely excluded for

all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is

concerned that would have to be determined according to the said personal law. Thus, the exclusion by Section 488 (the present Section 125)

extends only to the quantum of the maintenance and the circumstances under which it could be granted (brackets supplied).

Earlier, the Supreme Court in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, , dealing with Section 125, Cr, P.C, observed.

Broadly stated and as an abstract proposition, it is valid to assert....that a final determination of a civil right by a Civil Court must prevail against a

like decision by a Criminal Court.

A plain reading of Section 127(2), makes it clear, that it is incumbent on the part of the Magistrate who is faced with a decree of a Civil Court,

to consider whether the earlier order of maintenance passed by him, should be cancelled or varied in compliance with the decision of the Civil

Court. As such, the provision requires the Magistrate to consider the decision of the Civil Court vis-a-vis his own order of maintenance. He cannot

ignore the decision of the Civil Court, nor is he to blindly accept the decision as such. A learned Judge of the Karnataka High Court in K.

Narayana Rao v. Bhagyalakshmi 1984 Cri. L.J. 276 faced with a situation such as this, stated.

This is not to say that it should simply neglect the decree, if any, obtained by the husband in the matrimonial Court. The Court dealing with the

maintenance claim u/s 125 will have to carefully examine and take into consideration such decrees also, though as stated above, it is not bound by

the findings. It may be difficult to give instances where such decree or the observations made in such orders, touching questions relevant for

consideration u/s 125, will be sufficient to negative the claim of the wife. All that can be said is as observed by Chief Justice Beaunmont in

Fakruddin Shamsuddin Saiyed Vs. Bai Jenab, ), that the Magistrate should not ""surrender his own discretion"" simply because the husband was

armed with a Civil Court decree for restitution of conjugal rights"".

The above decisions would show that each case would depend on its own facts. Though an exparte decree, is as much executable as a decree

given after contest, so far as the present proceedings are concerned decree will stand on a slightly different footing from a decree rendered after

contest. There could be several reasons why a decree ultimately turns out to be an exparte decree. The contesting party might be ignorant of his

rights and remedies, might not have means to litigate and so on. On little or no evidence, exparte decree might ultimately come into existence. The

criminal Court therefore, keeping in mind, that despite the several personal laws relating to maintenance, the legislature had found it necessary to

put down Chapter IX in the Criminal Procedure Code, creating additional rights and entrusting to the criminal Courts, the task of enforcing them,

with the machinery available to them, is to cancel or vary the order of maintenance earlier passed by it, only if it appears to the Criminal Court, that

consequent to the decision of the Civil Court, its earlier order requires cancellation or alteration. It is not the legislative intent that any hard and fast

rule should be laid down on this aspect, since the legislature itself, has left Section 127(2) flexible.

Coming to the instant case, the first respondent has stated that she had no means to contest the divorce proceedings. Initially she had engaged

a Counsel and had filed a counter Ex. P. 4 but later she had not been able to pursue it. She had therefore been set exparte. Ex. R. 2 is now to be

perused to find out, whether maintenance has to be denied to the first respondent on account of the decision rendered therein, Ex. R. 2 the

judgment, is extracted hereunder in its entirely.

Petition is posted today for oral evidence of both sides. Petitioner is ready for enquiry with his Counsel. Respondent called absent. Counsel for

the Respondent has not turned up No representation on Respondent''s side. Respondent is set exparte. Petitioner is examined as P.W. 1. Ex. A. 1

to A. 3 marked. Heard, Allegations in the petition are found true in the light of evidence of P.W. 1 and the documents Exhibits A. 1 to A. 3 Hence

the petition is allowed with costs

The above judgment would show that the learned Subordinate Judge has made a very formal matter out of it. The petitioner is not an eye

witness to the alleged adultery. The first respondent from her childhood had been living with her sister and P.W. 2 is shown as guardian even in the

S.S.L.C. Book, produced by her here. Naturally the wedding invitation Ex. P. 2, also produced by her here, is in his name. The oral evidence of

the petitioner in the divorce O.P. proved nothing, so far as the adultery was concerned. Ex. A. 1 in the divorce O.P. is the marriage invitation, Ex.

P. 2 here. A. 2 is a notice issued by the petitioner''s Counsel to the respondent and A. 3 is the postal acknowledgement signed by the first

respondent. It is on this material, that the learned Subordinate Judge holds that the allegation of adultery made in the petition is found true in the

light of the evidence of P.W. 1 and documents Exs. A. 1 to A. 3. In Ex. R. 2, there is no reference to the counter filed by the first respondent and

to its contents. No issue have been framed. The evidence of the petitioner is neither summarised nor discussed for being either accepted or

rejected. Nor are the contents of the documents referred to. Neither of the Courts below had held that the first respondent was guilty of adultery.

Rightly the Courts below declined to act upon this exparte decree of divorce. They had instead, appreciated the evidence adduced before them on

this aspect and the learned Sessions Judge has given a positive finding, that there is no basis for holding that the respondent is not guilty of adultery

with P.W. 21 find no illegality or error in the learned Sessions Judge holding so. The first respondent therefore, is entitled for maintenance as found

by the learned Sessions Judge.

Regarding the second respondent, the learned Sessions Judge has found that Ex. P. 5 the out-patient chit of the Government Hospital at

Cuddalore, is sufficient to prove that the first respondent lived with the petitioner at or about that time when the second respondent was concieved.

The only reason given by the learned Magistrate for rejecting Ex. P. 5 is that, the address of the petitioner is not mentioned in it. No out-patient chit

ever contains the address of the husband of the patient. I see no perversity or error in the finding of the learned Sessions Judge awarding

maintenance to the second respondent.

In the result, the Crl. Revision Petition 487/87 as well as the Crl. M.P. 8339/87 are dismissed.