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Basavannappa Maharudrappa Pattanshetti Vs. Parvatayya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1973CriLJ115
AppellantBasavannappa Maharudrappa Pattanshetti
RespondentParvatayya
Excerpt:
.....j] amendment of judgment, decree or orders prayer for correction of clerical mistake in the decree with regard to rate of interest -rejection of held, section 28 of the land acquisition act states that the land owner who is held entitled for enhanced compensation shall be paid interest at 9% for the first year from the date of taking over possession until the enhanced amount is deposited and at the rate of 15% for subsequent years until the amount is so deposited. the mistake is committed while drawing up the decree as, instead of permitting interest at the rate of 15% payable for the period after the expiry of the first year from the date of taking over possession till the date of actual payment of the amount, the amount payable is restricted to only one year. this is contrary..........maintenance from him. the petitioner contested the claim on the ground that there was already a decree passed against him in l.c. suit no. 155/1959 and therefore the respondent was not entitled to proceed with an application under section 488, cr.p.c. he also contended that the claim made by the respondent-wife at rs. 200/- per month was highly excessive as his income was not rs. 12,000/- per year as alleged by her.3. it has been urged in both the courts below that existence of the decree in l.c. suit no. 155 of 1959 operates as a bar to entertain applications under section 488 cr.p.c. the same point is canvassed before me by sri b.v. deshpande learned advocate appearing on behalf of the petitioner. but there is a catena of decisions of bombay high court. calcutta high court, punjab.....
Judgment:
ORDER

M.S. Nesargi, J.

1. This petition is filed by Basavannappa the husband of the respondent as against the orders passed by the II Additional Munsiff and J.M.F.C. Second Court, Dharwar in Misc. Case No. 58 of 1970 and confirmed by the Sessions Judge, Dharwar in Criminal Revision Application No. 32 of 1971.

2. The few facts necessary for decision in this case may be narrated briefly as follows:

The respondent Parvatawa filed L.C. Suit No. 155 of 1969 against the petitioner Basavannappa her husband in the court of the Civil Judge. Junior Division. Dharwar. praying for a decree towards maintenance. That suit was contested and a decree was passed. The learned Civil Judge directed that the respondent was entitled to Rs. 200/- per year towards her maintenance from her husband Basavannappa, the petitioner. Then the Respondent filed Misc. Case No. 58 of 1970 in the court of the II Addl. Munsiff and J.M.F.C. Dharwar, under Section 488. Cr.P.C. making out a case that her husband the petitioner Basavannappa had neglected her and had refused to maintain her. She claimed maintenance from him. The petitioner contested the claim on the ground that there was already a decree passed against him in L.C. Suit No. 155/1959 and therefore the respondent was not entitled to proceed with an application under Section 488, Cr.P.C. He also contended that the claim made by the respondent-wife at Rs. 200/- per month was highly excessive as his income was not Rs. 12,000/- per year as alleged by her.

3. It has been urged in both the courts below that existence of the decree in L.C. Suit No. 155 of 1959 operates as a bar to entertain applications under Section 488 Cr.P.C. The same point is canvassed before me by Sri B.V. Deshpande learned Advocate appearing on behalf of the petitioner. But there is a catena of decisions of Bombay High Court. Calcutta High Court, Punjab High Court and Madras High Court holding that existence of a decree passed by a Civil Court for maintenance of a wife is no bar for a proceeding under Section 488. Cr.P.C. Section 488, Cr.P.C. does not lay down that jurisdiction of a criminal court would be barred in case there already existed a decree Passed by a competent Civil Court in regard to maintenance of a wife. Therefore it is seen that if the conditions mentioned in Section 488, Cr.P.C. are established a wife is entitled to an order of maintenance under that provision in spite of a decree having been passed in her favour previously by a Civil Court. There can be no doubt that this question whether a decree of Civil Court would bar an action under Section 488. Cr.P.C. would depend on the facts and circumstances of each case. When a finding as to the status of the parties has been pronounced by a Civil Court, that would be conclusive in a proceeding under Section 488, Cr.P.C. In the case on hand the finding that Parvatavva the respondent is the wife of Basavannappa the petitioner has been already recorded by the Civil Court in L.C. Suit No. 155 of 1959.

4. In Mohamad Ali Methabhai, in re: AIR 1930 Bom. 144 : 31 Cri LJ 609 it has been held that a mere decree of a Civil Court awarding maintenance is no bar for proceeding under Section 488, Cr.P.C. The same is the view expressed by the Bombay High Court in In re. Taralakshmi Manuprasad AIR 1938 Bombay 499 : 40 Cri LJ 91. The judgment is pronounced by a Bench consisting of Beaumont C.J. and Sen J., Beaumont C.J. speaking for the Bench has specifically laid down therein that decree of the Civil Court for maintenance does not oust the jurisdiction of a Magistrate to make an order under Section 488, Cr.P.C.

5. In Saraswati Debi v. Narayan Das : AIR1932Cal698 it is pronounced that jurisdiction under Section 488. Cr.P.C. is not ousted by a previous agreement between husband 'and wife in regard to maintenance. The Punjab High Court in Gurdial Kaur. v. Jang Singh has held that a previous compromise between the parties in regard to maintenance does not oust the jurisdiction of a Magistrate In awarding maintenance by exercising his powers under Section 488, Cri P.C.

6. Many of these above cited decisions have been considered by the Madras High Court in Govindaswami Mudaliar, v. Muthulakshmi Ammal (1966) 1 Mad LJ 208 : 1966 Cri LJ 732. It has been held therein that there is nothing in Section 488. Cr.P.C. which bars the remedy under it because of the existence of a decree of a civil court for maintenance and that the question whether a decree of the civil court would bar an action under Section 488, Cr.P.C. would depend on the facts and circumstances of each case. I respectfully agree with the principles enunciated in the above cited decisions. Therefore, this point canvassed by the learned Counsel appearing on behalf of the petitioner has to fail.

7. Shri B.V. Deshpande, nextly urged that the evidence on record shows that Parvatavva was trading in bangles and therefore was deriving income therefrom. He further urged on this basis that the two courts below have ignored this aspect of the matter while fixing the quantum of maintenance amount. The evidence produced discloses that it is sufficient to establish that Parvatavva was following a profession, namely, trading in bangles. But the petitioner has not produced any conclusive evidence to establish what actually was the income derived by Parvatavva from pursuing this profession. In the absence of such material, in my opinion, it is not possible to contend that any particular amount of income should be taken into consideration while assessing the liability of the petitioner husband to pay a particular amount as maintenance to Parvatavva. This contention therefore has to fail.

8. Mr. Deshpande made an attempt to contend that the quantum of Rs. 25/- per month awarded by the learned Magistrate is too high in the very nature of things. The order passed by the two courts below discloses that both have taken into consideration the quantum of maintenance awarded to Parvatavva in L.C. Suit No. 155 of 1959 while fixing this amount of Rs. 25/- per month in this proceeding. The amount awarded by that decree is Rs. 200/- per year and that too in the year 1959 or so. That would not be even Rs. 20/- per month. It can hardly be said that such an amount is sufficient to maintain oneself in these hard days. An amount of Rs. 25/- now fixed by the two courts below would augment this amount fixed by the Civil Court and the total would be even then less than Rs. 45/- per month. In my opinion, even this sum is hardly sufficient to maintain oneself in these days In view of these circumstances, I am unable to see any force in this contention put forward by Shri B.V. Deshpande.

9. This petition therefore is dismissed.


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